FIRST BOOK - General Provisions
FOURTH PART - Search and Seizure
Search related to the suspect or the accused
Article 116 – (1) In cases where there is reasonable doubt that he may be arrested without a warrant, or evidence of the crime may be obtained, then a body search and a search of the belongings, or a search in the dwelling, business place and in the other premises of the suspect or the accused may be conducted.
Search related to the other persons
Article 117 – (1) With the aim of securing the arrest of the suspect or the accused without a warrant, or with the aim of obtaining evidence, a body search, a search of the belongings, or a search of the dwelling, the business place or the other premises of another individual may be conducted as well.
(2) In such cases, the search shall only be conducted, if there are facts to conclude, that the person who is being searched or the evidence of the crime is located in those premises.
(3) This restriction shall not apply to premises where the suspect or the accused is present, as well as to premises he entered during the pursuit.
Search during the night hours
Article 118 – (1) Private dwellings or business places, as well as other property closed to the public, shall not be searched at the night hours.
(2) The provision of the first subparagraph shall not apply to the searches conducted for the purpose of re-apprehending the individual or the unconvicted or convicted prisoner, who escaped after he had been arrested without a warrant, or put into the police custody, under the conditions where he was detected in the act, or where there was peril in delay.
Article 119 – (1) The members of the security forces shall conduct searches upon the order of the judge, or if there is peril in delay, upon a written order of the public prosecutor, if the public prosecutor is not reachable, upon a written order of the superior of the security force.
However, searches in private dwellings, business places, as well as other property closed to the public, shall be conducted upon the order of the judge; or in cases where there is peril in delay, upon the written order of the public prosecutor. The outcome of the search conducted upon the written order of the superior of the security forces shall be notified to the office of the public prosecution immediately.
(2) The search warrant or order shall clearly include;
The conduct that constitutes the ground for the search,
The person with respect to whom the search shall be conducted, the address of the dwelling or the place to be searched, or the material that is to be searched,
The time limitation of the validity of the warrant or order.
(3) The open identities of those who have conducted the search shall be included in the document produced after the search.
(4) If private dwellings, business premises or properties that are not open to the public are to be searched without the public prosecutor being present, then two members of the community council in that district or two neighbours shall be called to be present, in order to be entitled to conduct the search.
(5) The search in places assigned for military services shall be conducted by the competent military authorities upon the motion and with the participation of the public prosecutor.
Persons who may be present at the search
Article 120 Ð (1) The owner of the premises or possessor of the items to be searched may be present at the search; if he is not present, his representative or one of his relatives who has the capability of distinguishing or a person living in his household or a neighbour shall be present.
In cases stated in the first subparagraph of Article 117 the possessor, and in his absence, the person called on his behalf, shall be informed of the purpose of the search before it begins.
The attorney of the individual shall not be prevented from being present during the search.
Documents to be handed over at the end of the search
Article 121 Ð (1) At the end of the search, the person who was subjected to the search, shall receive upon his request a document declaring that the search was conducted in accordance with Articles 116 and 117; and in an event which is regulated in Article 116, a document declaring the qualifications of the punishable conduct, and upon his request, a book-list of the items that were seized by force or taken under protection, and if nothing justifying the suspicion was found, a document including this fact, shall be given to him.
The documents mentioned in the first subparagraph shall also include the searched person’s opinions and allegations
regarding the ownership of the seized objects.
A complete book-list of the items put under the protection or seized by force shall be made and those items shall be sealed with an official seal or marked.
The power for inspection of documents and papers
Article 122 Ð (1) It is the Public authority to inspect the documents or the papers of the person, with respect to whom the search was made.
The possessor of the documents and the papers or his representative may also use his own seal or signature. If it is subsequently decided to break the seal and inspect the papers, the possessor or his agent or his defence counsel or his representative shall be summoned to be present at that time; in case they fail to appear, the interaction that is deemed necessary, shall be implemented.
Documents or papers which are established as not connected to the crime subject to investigation or prosecution at the end of the inspection shall be delivered to the concerned individual.
Securing and seizure of materials or gains
Article 123 – (1) Materials likely to be useful as means of proof or values of property which are subject to confiscation of goods, or confiscation of gains shall be secured.
(2) In cases where the individual who carries the evidence refuses to surrender voluntarily, those items may be seized by force.
Interactions related to individuals who refuse to surrender the requested items
Article 124 – (1) A person who carries such material or other values of property described in Article 123 is obliged to show and surrender this item upon request.
(2) If the surrender is refused, disciplinary arrest provisions of Article 60 are applicable against the possessor. However, this provision does not apply to the suspect or the accused or those persons, who may refrain from giving a testimony as a witness.
Inspection of documents by the court that include state secrets
Article 125 – (1) Documents that include information about a fact related to a crime shall not be classified as state secret in the court proceedings.
(2) Documents that include information of the nature of state secret shall only be examined by the judge of the court or by the panel of judges. Only the information included in these documents that are suitable to reveal the charged crime shall be dictated to the court files by the judge or by the president of the court.
(3) The provision of this Article is only applicable to the crimes that carry imprisonment of 5 years at the lower level or more.
Letters and documents immune from seizure
Article 126 – (1) Letters and documents communicated between the suspect or the accused and those persons capable of asserting a privilege to refrain from testimony as a witness in accordance with the provisions of Articles 45 and 46 may not be seized as long as such items are at the hands of persons who have this privilege.
Power for the seizure decision
Article 127 – (1) The seizure may be conducted by the members of the security forces upon the decision of the judge, or if there is peril in delay, upon the written order of the public prosecutor; in cases where it is not possible to reach the public prosecutor, upon the written order of the superior of the security forces.
The open identity of the member of the security forces shall be included in the record of the seizure.
Where a seizure was made without a warrant of a judge, the seizure shall be submitted to the judge who has jurisdiction for his approval within 24 hours. The judge shall reveal his decision within 48 hours from the act of seizure; otherwise the seizure shall be automatically void.
The individual whose goods of his possession or his other property values have been seized, may ask the judge to give an order in this issue at any time.
The seizure shall be notified to the victim, who suffered losses, without any delay.
Seizures within places assigned for military services shall be conducted by the military authorities, upon the request of and with the participation of the public prosecutor.
Seizure of immovable goods, rights and credits
Article 128 – (1) The following items belonging to the suspect or the accused may be seized in grounds of suspicion tending to show that the crime under investigation or prosecution has been committed and that they have been obtained from this crime;
Transport vehicles of land, sea or air,
All kinds of accounts in banks or other financial institutions,
All kinds of rights and credits by real or juridical persons,
Shares at the firm where he is a shareholder,
Contents of the rented safe,
Other assets belonging to him.
Even in cases where these immovables, rights, credits and other values of belongings are in possession of individuals other than the suspect or the accused, the seizure is also permitted.
(2) The provisions of subparagraph one are only applicable to the following crimes:
a) The following crimes as defined in the Turkish Penal Code;
Genocide and crimes against humanity (Arts. 76, 77, 78),
Smuggling migrants and human trading (Arts. 79, 80),
Theft (Arts. 141, 142),
Aggravated theft (Arts. 148, 149),
Breach of trust (Art. 155),
Fraud (Arts. 157, 158),
Fraudulent bankruptcy (Art. 161),
Producing and trading of narcotic or stimulating substances (Art. 188),
Forgery of money (Art. 197),
Forming an organization in order to commit crimes (Art. 220),
Cheating in public bits (Art. 236),
Fraud in fulfilling of obligations (Art. 236),
Embezzlement (Art. 247),
Bribery by force (Art. 250),
Bribery (Art. 252),
Crimes against state security (Arts. 302, 303, 304, 305, 306, 307, 308),
Crimes of an armed organisation (Art. 314), or supplying such organisations with arms (Art. 315),
Crimes against state secrets and spying (Arts. 328, 329, 330, 331, 333, 334, 335, 336, 337),
b) Smuggling weapons as defined in the “Act on Firearms and Knives as well as Other Tools” (Art. 12),
Embezzlement as defined in the Banking Act (Art. 22/3 and 4),
Crimes as defined in the Combating Smuggling Act that carry imprisonment as punishment,
Crimes as defined in Arts. 68 and 74 of the Act on Protection of Cultural and Natural Values.
A decision on the seizure of an immovable shall be enforced by taking a note in the title.
A decision on the seizure of vehicles operating on land, sea and air shall be enforced by taking a note in the title, where they are registered.
A decision on the seizure of accounts at banks and other financial institutions shall be enforced by immediately informing the bank or financial institute by technical communication means. The related decision shall also be notified to the bank or financial institution separately. The interactions at the bank account, aimed to make the decision of seizure ineffective, which are conducted after the decision has been rendered, are void.
A decision on the seizure of shares at a firm shall be enforced by notifying the administration of the related firm and the head of the commerce title by technical communication means immediately. The related decision shall also be notified to the related firm and to the directorate of the financial institution separately.
A decision on the seizure of rights and credits shall be enforced by immediately notifying the related real or juridical person by technical communication means. The related decision shall also be notified to the real or juridical person separately.
In cases where there are violations of the requirements of the decision on seizure, Art. 289 of the Turkish Penal Code related to the “misusing of the power of protection” shall apply.
(9) Seizure under the provision of this Article shall only be decided by the judge.
Seizure at the post office
Article 129 – (1) Communications that are at the post office, may be seized by the order of the judge, or in cases where there is peril in delay, with the order of the public prosecutor, if there is probable cause to believe that these items are comprising evidence of the crime and it is deemed necessary to keep those items under the custody of the Administration of Justice during the investigation or prosecution in order to reach the truth.
(2) The officers of the security forces shall act and make the requested seizure, after they have been notified of the orders of the judge or the public prosecutor; and they shall not be entitled to open the envelopes or packages mentioned in the subparagraph one. Seized items of communication shall be sealed in the presence of the post officials and shall be delivered immediately to the judge or the public prosecutor who ordered the seizure.
The concerned persons shall be informed of the applied measures, if there is no risk of harm to the aim of the investigation and prosecution.
If the judge rules that the items shall not be opened, or, if after breaking the seal, he does not deem it necessary that these items are to be held in the custody of the Administration of Justice, those communications shall be immediately given back to the addressee.
The search and seizure in attorneys’ offices, and seizure of mail
Article 130 – (1) The attorneys’ offices shall only be searched with a court decision and in connection with the conduct that is indicated in the decision and under the supervision of the public prosecutor. The President of the Bar or an attorney representing him shall be present at the time of search.
(2) If the attorney whose office is searched or the president of Bar or the attorney representing him objects to the search in respect to the items to be seized, at the end those items are related to the professional relationship between the attorney and his client, then those items shall be put in a separate envelope or a package and be sealed by the present individuals and, in the investigation phase, the judge of peace in criminal matters, or the judge or the Court in the prosecution phase, to give the necessary decision on this matter. If the judge with venue establishes that the seized items are under the privilege of attorney client relationship, the seized object shall be promptly returned to the attorney and the transcripts of the interactions shall be destroyed. The decisions mentioned in this subparagraph shall be issued within 24 hours.
(3) In cases of seizure in the mail office, the procedure stated in the second subparagraph shall be applicable, if the attorney, whose office is subjected to search, or the president of Bar Association, or the attorney representing him disagree.
Seized items to be returned
Article 131 Ð (1) The items that were taken from the suspect, accused or the third parties, that are no longer needed with regard to the investigation and prosecution, or items of which it became clear that those are not subject to confiscation, shall be returned with the decision of the Public prosecutor, judge or the court on its own motion or upon a motion. The decision on denial may be subject to a motion of opposition.
(2) Items or other assets which have been seized under the provisions of Article 128 shall be returned to the owner, if they belong to the victim who is the injured party and they are no longer needed as pieces of evidence.
Protection of the seized items or their liquidation
Article 132 Ð (1) In cases where there is a present danger that the seized item is going to be damaged or to suffer a substantial loss of value, that item may be liquidated before the judgment is made final.
(2) The decision on the liquidation shall be rendered during the investigation phase by the judge, and by the court during the prosecution phase.
Before making a decision, the suspect, accused or other individuals, who are the owners of the item, shall be heard; the decision on the liquidation shall be notified to them.
Necessary measures shall be taken in order to avoid any damage and to maintain the value of the item.
The seized item may be given to the suspect, accused or to any other individual in order to protect it, during the investigation phase by the office of the public prosecution, during the prosecution phase by the court, under the condition to take related measures of care and protection and to return immediately if requested. This delivery may also be subject to posting a security.
In cases where there is no need to keep the seized item as evidence, that item may be handed over to the concerned individual, if he pays the current value of the item immediately. In such cases, the paid current value shall become the subject of the confiscation decision.
Appointing a trustee for the administration of a firm
Article 133 - (1) In cases where there are strong grounds of suspicion that the crime is being committed within the activities of a firm and it is necessary for revealing the factual truth, the judge or the court is entitled to appoint a trustee for the administration of the firm with the aim of running the business of the firm, for the duration of an investigation or prosecution. The decision of appointment shall clearly indicate that the validity of the decisions and interactions conducted by the organ of the administration depends upon the approval of the trustee, or that the powers of the organ of the administration has been transferred to the trustee. The decision on appointing the trustee shall be announced by the newspaper for the record of the trade and by other suitable means.
(2) Fees for the trustee estimated by the judge or the court, shall be compensated by the budget of the firm. However, in cases where there is a decision on no ground for prosecution has been rendered about the investigated crime, or if there is a judgment of acquittal, the total sum of money paid as the fee of the trustee shall be compensated by the state treasury, with interest.
The related persons are entitled to apply to the competent court against the interactions of the trustee, according to the provisions of the Turkish Civil Code dated 22.11.2001, No. 4721 and of the Turkish Commerce Code dated 29.6.1956, No. 6762.
The provisions of this article are applicable only for the following crimes as listed below:
a) Crimes regulated in the Turkish Criminal Code,
Smuggling migrants and human trafficking (Arts. 79, 80),
Producing and trading in narcotic or stimulating
substances (Art. 188),
Forgery in money (Art. 197),
Prostitution (Art. 227),
Providing place and
opportunity for gambling (Art. 228),
Embezzlement (Art. 247),
Laundering of assets
emanating from crime (Art. 282),
Armed organisation (Art. 314), or providing arms for such organisations (Art. 315),
Crimes against the secrets of the state and spying (Arts. 328, 329, 330, 331, 333, 334, 335, 336, 337),
Smuggling weapons as defined in the Act on Fire Arms and Knives as well as Other Tools (Art. 12),
Embezzlement as defined in Banking Act Art. 22,
subparagraphs (3) and (4),
Crimes as defined in Combating Smuggling Act that require the punishment of imprisonment,
Crimes as defined in the Act on Protection of Cultural and Natural Substances, Arts. 68 and 74.
Search of computers, computer programs and transcripts, copying and provisional seizure
Article 134 – (1) Upon the motion of the public prosecutor during an investigation with respect to a crime, the judge shall issue a decision on the search of computers and computer programs and records used by the suspect, the copying, analyzing, and textualization of those records, if it is not possible to obtain the evidence by other means.
If computers, computer programs and computer records are inaccessible, as the
passwords are not known, or if the hidden information is unreachable, then the computer and equipment that are deemed necessary may be provisionally seized in order to retrieve and to make the necessary copies. Seized devices shall be returned without delay in cases where the password has been solved and the necessary copies are produced.
While enforcing the seizure of computers or computer records, all data included in the system shall be copied.
In cases where the suspect or his representative makes a request, a copy of this copied data shall be produced and given to him or to his representative and this exchange shall be recorded and signed.
It is also permissible to produce a copy of the entire data or some of the data included in the system, without seizing the computer or the computer records. Copied data shall be printed on paper and this situation shall be recorded and signed by the related persons.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: