General Assembly of the SUPREME COURT of Criminal
Base 2016/236
Decision 2019/55
Who Made The Decision
Office of the Supreme Court : 10. Criminal Department
Court :Severe Punishment
Number : 51-186

188/3, 62, 52, 53, 54 and 63 of the TCC No. 5237 of the accused … for the crime of trafficking in narcotic substances. according to the articles of 04.06.2013 and No. 51-186 issued by the Düzce High Criminal Court on punishment, deprivation of rights, confiscation and deprivation of liberty with a sentence of 4 years and 2 months in prison and a judicial fine of 1000 TL, the Supreme Court examining the file on appeal by the defendant and his defense 10. By the Criminal Department dated 27.11.2015 and numbered 4375-33092;

“Since it is understood that the proceedings in the trial process are conducted in accordance with the law, the evidence is shown and discussed in a reasoned decision, the conscience is based on accurate data in accordance with the documents and information contained in the file, the action is determined by the defendant, the type of crime that matches the action and the sanctions other than those specified below are correctly determined, the rejection of other appeals that are not considered appropriate, but;

1 – search in the search to determine the decision on the defendant and brought the original or an authenticated copy; the decision to seek or doubt on the question whether there is any element of a crime by law enforcement officials, the article by saying that the left inner pocket of his jacket out of 10 paketcik by delivering marijuana law enforcement officers with the consent of, the defendant, who helped the emergence of active regrets about his own guilt about Article 192 of the Penal Code. article 3. it is necessary to determine the legal status of the accused by discussing whether to apply the paragraph, while establishing a provision with incomplete research,

2- With the decision of the Constitutional Court dated 08.10.2015 No. 2014/140 and decision No. 2015 No. 85 of 5015 dated 24.11.2015 and published in the Official Gazette No. 29542, which entered into force after the judgment, 53 of the TCC No. 5237. materials;

a) As a result of the legal result of the conviction of a person to imprisonment for a crime he has intentionally committed, contained in paragraph (1) of paragraph (a);…‘, contained in paragraph (b) of paragraph,

b) to cancel the phrase ‘… and other political rights’ contained in paragraph (b) of paragraph (1),

c) Cancellation of paragraph (2) of paragraph (1) from the point of view of the phrase “From the driver’s license to elect and be elected …” contained in paragraph (b) of paragraph (a),
Due to the fact that the decision was made, it was decided that from the point of view of the application of the aforementioned article, there is an obligation to re-determine the defendant’s condition, ”deteriorate from their failure.

The Prosecutor General’s Office of the Supreme Court is dated 07.01.2016 and numbered 260176;

“… The Public Prosecutor’s Office of the Supreme Court and the Supreme Court of Cassation 10. The dispute between the Criminal Department is whether a search decision is necessary in a concrete case, if there is no search decision, dec dec dec 192/3 of the Turkish Commercial Code due to the fact that the defendant turned over the drugs about the defendant. it is related to whether the article will be applied.

In the evaluation of the incident conducted in accordance with the legal texts;

38/6 of the Constitution. article “Findings obtained contrary to the law are not accepted as evidence” has been regulated as follows.
CMK 116, 117, 118, 119, 120, 121 and dec, the principles related to search and seizure have been determined. Accordingly, ‘In cases where it is inconvenient for the judge to decide or delay, the Public prosecutor’s office and the Public prosecutor’s office cannot be reached, law enforcement officers can make calls with the written order of the law enforcement officer. However, a search in a residential building, workplace, and closed areas that are not open to the public can be carried out by a written order of the Public prosecutor in cases where there is a decency in the judge’s decision or delay. The results of the search carried out by written order of the dec enforcement officer are immediately notified to the Prosecutor General’s Office. the arrangement is made in the form of ’.
Article 4 / A of the Police Duty and Safety Law No. 2559 is 6. in its paragraph‘ ‘The police may take the necessary measures to prevent harm to themselves and others if there is sufficient suspicion that there is a weapon or other dangerous item on the person they are stopping or in their vehicle. For this purpose, it is not desirable to remove the dress on the person or to open parts of the vehicle that are not visible when viewed from the outside. However, except for manual external control, the search of the person’s top and belongings, as well as parts of the vehicle that are invisible when viewed from the outside, can be carried out by oral order of the law enforcement officer appointed by the property chief in writing, in case of haste, to be confirmed in writing, within the principles determined by the Ministry of Internal Affairs. The decision of the law enforcement officer is submitted to the approval of the duty judge within twenty-four hours. In dec to the vehicle searches carried out within the scope of this paragraph, the person is provided with a document including the reason for the search.’ the provision has been made in the form of.

8 of the Regulation on Judicial and Preventive Searches entitled Search to be carried out without decision8. in the article;

In the following cases, a search warrant or a deci-sion is also not sought, while they are considered limited after they are said to be in subparagraph (f);
‘the provision of the law in Article 24 of the Turkish Criminal Code No. 5237 and the execution of the supervisor’s order 25. the article self-defence and state of necessity in accordance with the right of use stipulated by law and other laws and 26 of compliance in terms of causes and the danger to the community or individuals in flagrante delicto in a search in order to eliminate or indoor places amid calls for help, housing, workplace and residential location, and to enter into the plugin with. the arrangement is made in the form of ’.
27 of the Regulation on Judicial and Preventive Searches. Article 5. in the paragraph;

The following actions are performed on the ‘stop;

a) A check is made on the stopped person in the form of a roll call without removing any of his clothes. If, as a result of this process, there is enough doubt to conclude that the person has a gun, the officer can conduct a spontaneous search for weapons and other criminal property.

b) By polling, the control is carried out by the official who is in the person’s gender.

c) The subject and reasons for the check are explained to the relevant person.

d) The time for stopping a person or vehicle must be reasonable, according to the conditions, and not exceed the allotted time.

e) By polling, the control is carried out in the least troublesome way for the person.

f) If traces, artifacts, signs and evidence related to the crime are obtained as a result of the control carried out, the person is arrested.

g) If it is believed that a certain thing, such as drugs, is hidden anywhere in the person, a more extensive check can be carried out.

h) By polling, the check is carried out in such a way that others will not see it as much as possible at the place where the person or vehicle was first stopped or near that place. There is no control by taking it elsewhere.

i) If there is a reasonable reason, an injury may be caused by a law enforcement vehicle or a nearby closed place for a more extensive check-up.

j) Upon request after the inspection, a report is immediately issued at the scene.

The procedures written in this article can also be performed at night. the arrangement is made in the form of ’.

6 of the Arrest, Detention and Deposition Regulation entitled capture. article 3. in the paragraph ‘Measures shall be taken to prevent the destruction or deterioration of the trace signs and evidence of the crime during the capture. the arrangement is made in the form of ’.
CMK’s 2. article 1. in subparagraph (j) of paragraph;

‘Red-handed:

1. The crime that is being committed,

2. The crime committed by the person who has been harmed by law enforcement, crime or caught following others after the commission of the verb with the verb that has already been committed,

3. The crime committed by a person caught with items and evidence indicating that the act was committed just now has been defined as ’.
Within the framework of the concrete event described above and the legislation specified;

The search and seizure process is decriminalized under Article 20 of the Constitution. in accordance with Article 116 and the continuation articles of the CMK, the decision of the judge without exception can be made by the written order of the law enforcement officer if the Public prosecutor and the Public prosecutor are not reached in cases where it is inconvenient to delay, there is no doubt that it can be done by written order of the law enforcement officer.

However, if there is a situation where even the written order of the law enforcement officer cannot be obtained in very exceptional and hasty cases, the issue of whether the evidence obtained as a result of a direct search and seizure of a law enforcement officer should be considered in accordance with the law should be discussed. decriminalization of the evidence obtained as a result of a direct search and seizure of the law enforcement officer.
Article 4 / A of the Law on Police Duties and Security No. 2559 6. in the paragraph, by introducing a regulation on this issue, the police can take the necessary measures to prevent damage to him and someone else if there is sufficient suspicion that there is a weapon or other item that poses a danger to a person or vehicle, manual external control, in other words, rough top search has been introduced on the basis that it can do. On the contrary, a person who is arrested on suspicion of carrying a dangerous weapon, bomb or explosive dangerous substance cannot be expected to receive a written order from a law enforcement officer to at least check his top.

Situations where a search can be made without a decision 8 of the Decisional Decisionand Prevention Searches Regulation. it was counted one by one in its article, its red-handed state was also shown in paragraph (f), as well as in Article 27 of the same Regulation. in the article, it is also stated that if the law enforcement officer believes that the person will commit or commit a crime, in subparagraph (g), if it is believed that a certain thing, such as drugs, is hidden anywhere in the person, a more extensive check can be carried out.

In a concrete case, the incident report suggests that, as the defendant on notice of the security forces specified outbound selling drugs on the street, they saw the defendant in front of a café on the street and hold up on the job I thought might be due to drug found in nervous movements, up close where the accused is an element of the crime before the ID is desired later on, when asked whether the defendant’s stated in the form of the flare that took drink order 10, it was found that the security forces surrendered to the joint.

Dec decisively, it is clear that the intelligence information received by the officers is not based on any concrete evidence to be requested for a decisional search warrant or a written decisional search warrant, and is not at the stage to be requested for a decisional search warrant or a written decisional search warrant. At this stage, the security forces approached the accused based on the powers granted to them by the laws and regulations, while they could make a search decisionfirst of all, they tried to seize the criminal property by asking the accused if there was a criminal element on it, and handed over the drugs on the accused to the security forces without a search decisionor a search decisionor.

However, this surrender also does not require the application of Article 192/3 of the TCC about the accused. 4 2559 described above because of the Sy-A substance and drug regulation required by the provisions of the security forces that they receive intelligence information captured or sold in stopping the defendant, the defendant can do a search because it is rough on the upper understood that the defendant’s search to be performed prior to delivering a drug substance that can be found easily in search of regret because it doesn’t require the provision of effective implementation of the search decision whether the investigation will not be any effect on the result, therefore, of the Constitutional Court, Article 53 of the Penal Code. since it is possible to observe the cancellation decision No. 2014/140 of 08.10.2015 and decision No. 2015/85 published in the Official Gazette dated 24.11.2015 regarding the deprivation of rights in the article, the defendant’s conviction should be upheld with criticism,”the appeal appealed to the law with the opinion that “the verdict given about the defendant should be upheld with criticism.

CMK’s 308. the Supreme Court, which conducts an examination in accordance with Article 10. Since the reasons for the appeal with the number 145-200 dated 22.01.2016 and 145-200 were not considered in place by the Criminal Court, the file sent to the First President of the Supreme Court of Cassation with a bet was evaluated by the General Assembly of the Punishment and decided on the grounds described.

ON BEHALF OF THE TURKISH NATION

THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY

A dispute between the Special Department and the Prosecutor General’s Office of the Supreme Court, which must be resolved by the General Assembly of Decriminalization;

1- Whether it is necessary to investigate whether there is a judicial search dec decisionor a written search warrant in a specific case,

2- In the event that there is no need to investigate whether there is a search warrant or a written search warrant, and there is no decency in obtaining the evidence subject to the crime, the defendant is decriminalized in accordance with Article 192 of the Turkish Commercial Code. article 3. whether the provision of effective remorse regulated in the paragraph can be applied,

It is related to the determination of

From the scope of the examined file;
According to the report dated 31.12.2012 submitted to the KOM Branch Directorate; during the intelligence work … the Ağaköyü Neighborhood of the named person, 1. In order to obtain information that he sells substances in the form of flares on the street, in the studies conducted on the subject, the person was registered as Veysel-Aynur son, Yıldızeli-06.05.1987, Sivas / Yıldızeli-Alacaköyü population, 33673682020 TC ID number … and Ağaköyü Neighborhood 1975. It was determined that he resided in Street No: 12, had a record of (3) for theft, and studies were started on the person who received information that he was selling substances in Ağaköy,
according to the minutes of the incident, capture, top search, consensual delivery, decommissioning dated 04.01.2013; In the work done by the officers of the KOM Branch Directorate, Ağaköyü Neighborhood of the person named … at around 18.30 on 04.01.2013, 1. Located on the Avenue waiting in front of kiraathane saw, nervous movements exhibit assessing officer observed that the person I went on to pass the name of a drug that could be the police they showed their identity cards, the ID of the person requested to present the identity document issued by the officials, asked on whether an element of a crime, the person stated that they found the article on Substance Use, call it rude staff told to the top of the desired person, in the white papers that he took out of the inner left pocket of his coat, he handed over the marijuana that came in the form of (10) firecrackers of 2 grams each and was estimated to be a total of 20 grams to the officers with his consent,
According to the report dated 22.01.2013 organized by the Istanbul Police Criminal Laboratory; a net 4.35 grams of substance can be obtained from hemp fragments from a net 8.7 grams,
According to the report of Düzce University Research and Application Hospital dated 29.01.2013; No drugs or stimulants were found in the urine sample taken from the defendant on 18.01.2013,
According to the research report dated 02.05.2013 of the Hendek District Police Department and dated October 156 and attached to it; It was reported that there was a person known by the nickname Uncle Felek in the Turanlar neighborhood of Hendek district …,
It is understood.
Witness …; his nickname is Uncle Felek, he does not know the defendant and did not give drugs to the defendant, he had no information about the incident,
The witnesses who prepared the minutes, Ethem Turkmen and Nazim Ayhan; during their street work, they obtained information that the defendant was selling drugs and they worked on this issue, that the minutes were correct and that they belonged to them in their signatures under their names, and that they repeated their contents exactly,
Stated.
The accused is … in law enforcement; substance use, narcotic substance on the moat at 16.30 hours on the day of the incident in the neighborhood known as the wheel of Fortune Turan County 55-60 years old, 165 cm tall, middle-overweight, bearded, a Gypsy, which is called a person to £ 100 in exchange for the Rockets in the case of the person’s real name and he didn’t know whether the fate of her last name, and went to the neighborhood of residence at 18.00 Düzce after taking cannabis in a coffee shop waiting for a friend while the police were coming, joint to give to the police, to anyone he didn’t sell drugs, in addition to the DA; the police came to him, “raise your arms, saying,” standing on the inner pocket (10) pieces in a paper bag wrapped in a flare-shaped pot had handed in the query; at the time of going to the coffee house on the identity of what they want from the police (10) mystery wrapped in a separate paper given to the officers of the court; he knew the person that receives the pot of wheel of fortune as an uncle, the moat County, sitting as the grandfather of Tuncay Turan ozkara was in the neighborhood, he argued.
There is a benefit in evaluating the dispute issues separately.
1- Whether it is necessary to investigate whether there is a judicial search dec decisionor a written search warrant in a specific case;
In order to decisively resolve the dispute, it is useful to examine the legal nature of the “search” measure and the general principles prevailing in this measure, as well as the constitutional and legal regulations related to the issue.
A- General Protection Measure:
The code of Criminal Procedure to be made of the decision to be made or given at the end of the paper that is left on in order to cover the costs of, and reasoning, as a rule, by officials who have the authority to decide on Criminal Procedure, the delay is undesirable temporarily when the statutory provisions referenced and some of the basic rights and liberties before the intervention to remedy that requires “protection order” is called. (Bahri Öztürk, Behiye Eker Kazancı, Sesim Soyer Güleç, Protection Measures in Criminal Procedure Law, Seçkin, 2013, 1. Basi, p.1)
Protection measures are generally regulated in the Criminal Procedure Code No. 5271. The Fourth Part of the First Book of the Code of Criminal Procedure is entitled “Protection Measures” and the search and decapitation measure is also included in this part. According to this clear regulation of the law, search and decapitation are a measure of protection.
Protection measures often interfere with the fundamental rights and freedoms of both the suspect and third parties who are not in the status of suspects, although it is not yet fixed by a judicial decision whether a crime has actually been committed or committed by the suspect who is the subject of the transaction, apparently being satisfied with the right due to the fact that it is inconvenient to delay. For this reason, protection measures should be applied in a measured manner, in cases that are seemingly justified and there are inconveniences or dangers in their delay.
The principles of arrest and detention are laid down in Article 19 of our Constitution. in the article “Personal freedom and security” with the title;

“Everyone has the right to personal freedom and security.
The figures and their terms are shown in the law:
Stringent execution of penalties and security measures granted by a court; a judicial decision or a liability provided by law for the apprehension or arrest of the person as a condition of; to be brought before the competent legal authority under the supervision of a minor or a decision on the fulfillment of breeding a danger to society and who are mentally ill, drug or alcohol enthusiast, a disease that can spread in an institution punk or a person treatment, training, or taken in accordance with the principles set forth in the fulfillment of the law for breeding; arrest or arrest of a person who wants to enter or has entered the country illegally, or about whom a decision has been made to deport or return; no one can be deprived of their liberty except in their case.
Persons who have strong indications of their guilt can only be arrested by a judge’s decision to prevent their escape, destruction or alteration of evidence, or in other cases that require arrest, such as these and are shown in the law. Arrest without a judge’s decision can only be made in the event of a crime or in cases where it is inconvenient to delay; the law shows the conditions for this …”.
2 of the Code of Criminal Procedure. article 90 of the same Law under the heading of protection measures, which includes the definition of the perpetrator, is included in the article. in its article, actions are organized to be taken against the capture and the person who has been captured.
“Article 2: …j) Red-handed:
1. The crime that is being committed,
2. The crime committed by the person who has been harmed by law enforcement, crime or caught following others after the commission of the verb with the verb that has already been committed,
3. It refers to a crime committed by a person caught with items and evidence that indicate that the act was just committed.”
According to the definition in the article; for example, if the perpetrator stabs the victim, CMK will have 2 / j-1; if the perpetrator is caught following up after stabbing the victim, CMK will have 2 / j-2; if the perpetrator is caught with a bloody knife in his hand immediately after the act of stabbing, CMK will have 2/j-3 red-handed situations in Article.
“Actions to be taken on the capture and the person captured
Article 90: (1) In the following cases, anyone can be temporarily arrested:
a) The person is encountered while committing the crime.
b) There is a possibility that the person being monitored for a criminal act will escape, or there is no way to immediately identify him.
(2) Law enforcement officers have the authority to arrest in cases that require the issuance of an arrest warrant or an arrest warrant and are inconvenient to delay; if there is no opportunity to immediately contact the public prosecutor or his superiors, they have the right to arrest.
(3) Although the investigation and prosecution depend on the complaint, the arrest of a person in red-handed situations committed against children, physical or mental illness, disability or those who are found incapable of managing themselves due to their weakness is not dependent on the complaint.
(4) Law enforcement agencies, after taking measures to prevent him from escaping or harming himself or others at the time of his capture, shall immediately notify the captured person of his legal rights.
(5) The person and the incident who were caught according to the first paragraph and handed over to law enforcement agencies or who were caught by the officers in accordance with the second paragraph shall be informed to the Public prosecutor immediately and the action shall be taken in accordance with his order.
(6) In the event that the purpose of issuing an arrest warrant disappears due to the fulfillment of the transaction subject to an arrest warrant, the court, judge or Public prosecutor will request the immediate return of the arrest warrant”.
According to the article, a person of committing a crime, or an act act to prevent the escape of the person monitored for the determination of the identity or temporarily, it is not possible to capture everyone in authority. Law enforcement officers, warrant or the warrant and require the organization where delay is prejudicial; and the public prosecutor or in the absence of access to a supervisor, have the authority to capture. The law enforcement agency should take measures to prevent the person it has caught from escaping, harming himself or others, immediately notify the Public prosecutor and take action in accordance with his orders.
13 of the PVSK No. 2559. the article also authorizes the police to apprehend suspects with strong traces, artifacts, signs or evidence that a crime has been committed or attempted in the event of a crime or in other situations where it is inconvenient to delay.
The 13th in force on the date of the crime of the PVSK. the substance;

“Police,
A) Suspects who have strong traces, artifacts, signs or evidence that a crime has been committed or attempted in case of crime or in other situations where it is inconvenient to delay,
B) Those who have a decision on arrest or detention issued by the competent authorities,
C) Those who are drunk enough to disturb the comfort of the public or cause disgrace, or those who attack others in a state of intoxication, those who continue their actions despite warnings, as well as those who try to attack others and fight,
D) Those who have entered the country illegally or have been decided to deport or return their rights,
E) Those who oppose, resist and prevent the police from taking measures taken in accordance with the law,
F) Persons who are mentally ill, drug or alcohol dependent vagrants or who may transmit diseases that pose a danger to society for the purpose of carrying out measures taken in accordance with the laws for the treatment, education and breeding in an institution and the principles set out in the charter indicating the application of this Law,
G) Minors whose rights have been decided to be remanded under supervision or brought before the competent authority,
Captures and performs the necessary legal actions …”.
The principles of search and seizure; Dec 20 of our Constitution. in its article “Privacy of private life”, 21. in its article, it is regulated under the headings ”Housing inviolability”.
20 of our Constitution. the substance;
“Everyone has the right to demand that his private life and family life be respected. The privacy of private life and family life cannot be touched.
National Security, Public Order, Crime Prevention, general health, and the protection of public morals or for the protection of the rights and freedoms of others depending on one or more of the reasons, the decision of the judge has been duly given unless there is, however, where delay is prejudicial, also depending on these reasons, unless there is a written order of authority authorized by law; no one with the top down, papers and unsearchable things private and cannot be confiscated them. The decision of the competent authority shall be submitted to the approval of the judge in charge within twenty-four hours. The judge explains his decision within forty-eight hours from the date of confiscation; otherwise, the confiscation will take off by itself…”
21. item;
“No one’s dwelling can be touched. National Security, Public Order, Crime Prevention, general health, and the protection of public morals or the protection of the rights and freedoms of others depending on one or more of the reasons for the decision of a judge, unless it is duly issued; where delay is prejudicial, again also for these reasons authorized by law unless there is a written order of authority, it is not necessary to enter anyone’s Home, Search can be made, and here’s the goods cannot be confiscated. The decision of the competent authority shall be submitted to the approval of the judge in charge within twenty-four hours. The judge shall announce his decision within forty-eight hours from the date of confiscation; otherwise, the confiscation will be lifted by itself”.
Article 13 of our Constitution. by the regulation in the article, the restriction of fundamental rights and freedoms is constitutionally guaranteed and subject to certain conditions. According to this regulation, fundamental rights and freedoms, without touching their essence, can be limited only depending on the reasons specified in the relevant articles of the Constitution and only by law. These restrictions cannot be contrary to the word and spirit of our Constitution, the requirements of the democratic social order and the secular Republic, and the principle of moderation.
B- Decoupage and Types of Protection Measures:
1. The Concept of Decoupage
Search means “search work, dec deciphering, trying to find someone or something, researching, polling”.(Turkish Dictionary, Publications of the Turkish Language Association, 2009, p.113)
Since the search is an activity conducted to decipher what is hidden, things that are visible or left exposed cannot be the subject of the search. For example, a police officer, pedestrians or other vehicles used in a manner that presents a hazard in terms of in the back seat of a vehicle stopped due to drug or upon seeing the gun, are not considered in the search for them to confiscate. (Veli Özer Özbek, Decriminalization as a Protection Measure in Criminal Procedure, Seçkin, 1999, 1. Basi, p.18)
The search is carried out on people dec residences, places of work, vehicles, other places, tops, belongings, special papers, computers and computer programs they use and logs. A search made on a person should not reach the size of a physical examination. Because physical examination and taking samples from the body are subject to different provisions without searching, and looking at the genitals or anus area is considered an internal body examination. It is subject to the provisions of the search that body cavities such as mouth, arm dec dec except for these areas, and body areas such as feet, arms, and hair are looked at without using medical tools or methods.
The provisions related to the search are not only regulated in the Code of Criminal Procedure. Dec. 3 of the Regulation on Judicial and Preventive Searches, which regulates in detail the procedures for conducting the search process. No. 2559 on police duties and powers as given in the article, The Law No. 2803 on the organization of the gendarmerie, powers and duties and the Law No. 2692, the Coast Guard command of the Law No. 5607 Anti-Trafficking Law No. 5442 on Provincial Administration Law No. 6222 preventing violence in sport Law No. 5188 on private security services Law No. 5253 law on associations of the state of Emergency Law No. 2935, the Code of Martial Law No. 1402 and the Decree Law No. 485 on the Organization and Duties of the Undersecretariat of Customs have also established rules in this regard.
2. Types of Decoupage
The search is dec decoupled into “forensic search” and “prevention search” according to its purpose. A search may be conducted for the purpose of obtaining a suspect or defendant or evidence, or it may also be conducted dec prevent a crime from being committed or a danger. The first type of search is called a “forensic search”, and the second type of search is called a “decriminalization search”. In this respect, decoy is both a protection and a prevention measure. Although there are common features between both types dec dec searches, there are also significant differences in their legal nature, the legal regulations to which they are subject, and their scope.

a. Search For Prevention
Prevention search, which is applied for the purpose of protecting general safety and public order and preventing hazards; 9 of the PVSK No. 2559 and 18-26 of the Regulation on Judicial and Prevention Searches. it is regulated by articles 19 of the Regulation. in the article; “National security and public order and the general health of rights and freedoms of others or the protection of public morality, crime prevention, transport or possession of any prohibited weapons, explosives or of objects for the purpose of detection, where delay is prejudicial, or the decision of a judge on the orders of the civil authority specified in the second paragraph written in places, people, tool, private papers and stuff is in the process of the search” is defined as. In this way, the society will be protected from imminent danger by preventing possible damage or committing a crime by finding people and items that may disrupt public security and order.
In order for the prevention search to be decided on, there must be a concrete and foreseeable danger related to the specified issues. PVSK No. 2559 refers to the state of danger of this nature as a “reasonable cause”. The concepts of “reasonable suspicion” based on concrete facts and “reasonable reason” in the search for prevention are different in that criminal evidence can be obtained. “Reasonable cause“ is a phenomenon that is interpreted and evaluated by experts of the subject with a common opinion, while ”reasonable doubt” is a state in which a large number of ordinary people evaluate a concrete phenomenon in the same direction. (Feridun Yenisey, Ayse Nuhoglu, Textbook of Criminal Procedure Law, Distinguished, 4. Edition, 2016, p. 381-382)
The search for prevention can be carried out only in the places prescribed by law. 9 of the PVSK No. 2559. in the article, the places where a prevention search can be carried out based on the areas where a concrete and imminent danger may occur are counted one by one and, accordingly, the prevention search;
1) At or near the place where meetings and demonstration marches are held, which are covered by the Law on Meetings and Demonstration Marches No. 2911,
2) In the immediate vicinity of the place where the general assembly meetings of private legal entities and professional organizations or trade unions of the nature of public institutions are held,
3) Where the public is located or can gather en masse,
4) Education and training education and training institutions to ensure respect for freedom of every degree of managers demand and the emergence of the facilities of the institution to prevent the possibility of events that are not possible in the face of the rector, Dean or affiliate haste and cuffs help from the authorities if you want to be entered in higher education institutions, with their immediate surroundings at the entrance and exit,
5) In public or public places,
6) It can be done in all kinds of public transportation vehicles, moving vehicles.
It is not possible to conduct a decommissioning search in any way in residential buildings, residential buildings, non-public establishments and add-ons, and if there are conditions in these places, only a judicial search can be carried out.
Although the search for prevention is an administrative process, as a rule, it must be carried out by a judge’s decision. The determinations indicating the occurrence of a concrete danger by the law enforcement agencies are determined in advance and transmitted in writing to the property supervisor of that place along with the place and time recommended for the search to be carried out. If the governor or his deputy authorized in this regard and the district governor in the provinces, the property supervisor, who refers to the law enforcement officer’s request, requests a dec decisionfrom the judge if he finds it appropriate; however, in cases where it is inconvenient to delay, he can also issue a written search warrant. The public prosecutor does not have any duties and functions in making and executing the prevention search decision. A search for prevention cannot be made by order of the unit supervisors within the law enforcement agency itself. 4 of the Regulation on Forensic and Prevention Searches. in accordance with the article, the state that is objectionable in terms of delaying the search for prevention; if the process is not done immediately, and the general health of national security and public order or public morals or the protection of the rights and freedoms of others or in danger of harm, the crime can not be eliminated, which prohibited the possession or transport any firearms, explosives, or goods identified the emergence of the probability of failure, it is necessary to make a decision from the judge refers to a lack of time. 9/6 of the PVSK No. 2559. in accordance with the article, it is accepted that there is a situation that is inconvenient for the delay of a sports match, rally, concert, festival, meeting and demonstration march when a meeting is held or communities suddenly form.
In the decision or order of the prevention call, the reason, subject and scope of the call, the place where the call will be made, the time when the call will be made and the period during which it will be valid should be specified. Since there is no exception for the night in the search for prevention, it is always possible to do it. There is also no restrictive provision in the legislation regarding the limit of the period during which the prevention search decision will be valid. Because the period during which the prevention search will be valid may vary depending on the nature of the reasonable reason that is the basis for making a decision. For example; the Olympic Games will take like two or three weeks and with the participation of athletes and spectators from many countries around the world that may arise in a sports organization for the purpose of disturbing public order nature of incidents and the Prevention of crime prevention in the event of reasonable cause that a search will be made up to the time of the validity of the organization can be, in other words, depending on the situation one day, a clock, it is possible to call the issuance of the decision and even prevention. In any case, this period should not be more than the period justified by the search. Due to the fact that the search for prevention is also an interference with the basic rights and freedoms of people, the decision to conduct a long-term search for prevention, made for no reasonable reason, will not be in accordance with the law, even if it is apparently legal. Likewise, it would be unlawful to make a decisional search decision in a way that will be continuous and give the impression of a general search by renewing it at certain periods without a reasonable reason.
There are no special regulations in the PVSK No. 2559 and the Regulation on Judicial and Preventive Searches on how to conduct a preventive search. The provisions of the fourth part of the Regulation entitled “The Way in which Searches are Carried Out” are common provisions applicable to both judicial and prevention searches. Therefore, no difference was observed between decriminalization search and decriminalization search in terms of its execution.
If a criminal element or evidence is found as a result of the prevention search, it will be protected and a new written order from the Public prosecutor will be requested to immediately notify the Prosecutor General’s Office of the situation and carry out the confiscation process. In cases where the public prosecutor cannot be reached, a seizure may also be made by written order of the law enforcement officer. Confiscation without a judge’s decision must be submitted to the approval of the incumbent judge within twenty-four hours. An item that is the subject and scope of a prevention search but does not constitute a criminal element, for example, a coin, a lighter, is temporarily protected and handed over to the relevant person when the matter that caused the search is terminated.
The result of the prevention search is reported to the authority or authority that issued the decisionor or warrant for the search. In addition, if a criminal element is found during the search, a decriminalization search report is prepared specifically for this purpose. Named in the search warrant in this record is the date and number of search as it is registered, or the date and number of written order given to the decision of a judge issuing the order with authority the place where the call was made, the date and time of the call, the subject, the identity information of the subscriber, unless the name says, description information, a search is made, where a search is made in the vehicle if the vehicle position and the information of the call, the call results in the search elkonula crime stuff determining if the information you have in relation to it if credentials are captured, the ID cannot be determined if the description information, as a result of the search, the name, surname, registration and title of the dec dec who made the search are included in the issues of whether an injury or material damage occurred as a result of the search. The minutes are signed by those who have participated in the search process and those who are present, and a copy is given to the relevant dec. In cases where there is no criminal element, at the request of the wanted person, a document is provided to him containing the date and number of the search decision or order, the date and time of the call, the place, the identity information of the wanted person and the decantee, at the request of the wanted person.
There is no need for any search warrants or decisions for administrative audits that are not considered a prevention search. An audit is an operation performed at a place to determine whether a place is operating in accordance with the rules that it is obliged to comply with in terms of its activity. (Murat Ayd Decn, Search and Seizure, Distinguished, 2012, 2. Print s.137) 18 of the Regulation on Judicial and Preventive Searches entitled “Cases to be audited”. in the article, these situations are shown that can be controlled spontaneously by law enforcement agencies. In this context, for example; in terms of General Security and public order, the control of public rest and entertainment, challenge, No. 2918 Highway Traffic Act according to that stuff about the necessary documents and be located in the vehicle, controls, electromagnetic devices, and browsing through any shaped detector dogs by law enforcement or search order controls by itself, without need for a decision will be made. Since administrative audits that are not considered prevention searches are not only those listed in the regulation, many more special laws and regulatory acts contain provisions related to administrative audits.

In order for the stop authority to be used, a reasonable reason must be found based on the experience of the police and the impression he has made of the current situation. A stop operation cannot be performed in such a way as to provide continuity, create an actual situation and arbitrariness.
The policeman informs the person he stopped about the reason for the stop and may ask questions about the reason for the stop; he may ask for his identity or other documents that need to be kept to be presented.
The stopping time may not be more than the time required to perform the operation that is the basis for the reason for the stop.
Persons and vehicles are allowed to leave if the reason for the stop has disappeared.
If there is sufficient suspicion that a weapon or other dangerous item is found on the person or vehicle that he has stopped, the police may take the necessary measures to prevent harm to him or others. However, for this purpose, it is not desirable to remove the dress on the person or to open parts of the vehicle that are not visible when viewed from the outside …”,
27 of the Judicial and Prevention Searches Regulation entitled “Stop and control operations”, which was in force on the date of the crime. item;
“Stopping a person temporarily is not considered a capture; the person must be actually controlled in order to be considered a capture. It is also possible to stop vehicles for inspection.
In order for the stopping authority to be used, there must be reasonable doubt of the degree of ‘hope’. A law enforcement officer can be stopped if, based on his experience, he comes to the conclusion that this person will commit or commit a crime from the behavior that he monitors, or if he comes to the conclusion that the person is armed and still poses a danger.
A stop and control operation cannot be performed in such a way as to provide continuity, create an actual situation and arbitrariness without the presence of doubt supported by concrete signs.
About their behavior, which leads to the formation of the cause or suspicion, questions can be asked to the person who was stopped. The person is not obliged to answer these questions. If the suspicion that caused the use of the stop authority disappears with the statement made, the person will not be prevented from leaving.
Upon stopping, the following actions are performed:
a) A check is made on the stopped person in the form of a roll call, without removing any of his clothes. As a result of this operation, if there is enough suspicion to conclude that the person has a weapon, the officer can conduct a spontaneous search for weapons and other criminal property.
b) By polling, the control is carried out by the official who is in the person’s gender.
c) The subject and reasons for the check are explained to the relevant person.
d) The time for stopping a person or vehicle must be reasonable in accordance with the circumstances and not exceed the time allotted for control.
e) By polling, the control is carried out in a way that is the least troublesome for the person.
f) If traces, artifacts, signs and evidence related to the crime are obtained as a result of the check, the person is arrested.
g) If it is believed that a certain thing, such as a drug, is hidden somewhere in a person, a more extensive check can be carried out.
h) By polling, the check is carried out at the place where the person or vehicle was first stopped, or near that place, in such a way that others cannot see as much as possible. Control cannot be done by taking it elsewhere.
i) If there is a reasonable reason, a law enforcement vehicle or a nearby closed place may be used for a more extensive check-up.
j) Upon request after the inspection, a report is immediately issued at the scene.
The procedures written in this article can also be performed at night”.
With these regulations, law enforcement agencies have been granted the authority to stop and poll people and vehicles if their conditions have occurred and to conduct checks in the form of polling. 27 of the Regulation. paragraph (G) and (i) in accordance with paragraphs kollukca like any drug discontinued if a specific person is believed to be hiding something, or if reasonable cause exists within the authority will have the opportunity to control a wider range of preventive law enforcement. It should be noted here that law enforcement agencies will be able to take the necessary measures, but for this purpose they will not be able to request the removal of the person’s clothing or the opening of parts of the vehicle that are invisible when viewed from the outside.
b. Decriminalization Search
The suspect or accused or the evidence or the goods to be confiscated for forensic search of the research process the purpose of the seizure, confiscation, along with No. 5271 CMK 116-134, No. 2559 of pvsk 2, Appendix 4, Appendix 6, No. 5607 anti-trafficking law and the calls for Regulation 9 of the prevention and forensic 5-17. it is regulated by articles 5 of the Regulation. in the article; “commit a crime, or participate in or abetting anyone under reasonable suspicion, the hidden, the suspect, accused or convicted of crime and the arrest of the person, no trace, trace, circumstantial evidence, or evidence for obtaining residence confined to the privacy of a person’s private and family life, work, other places of his own, private papers and stuff, conducted in accordance with the Criminal Procedure No. 5271 tool in the process of Act and other laws” is defined as. (Bahri Öztürk-Durmus Tezcan-Mustafa Ruhan Erdem-Özge Sırma-Yasemin Saygiler Kırıt-Özdem Özaydın-Esra Alan Akcan-Efser Erden, Nazari and Applied Criminal Procedure Law, Distinguished, 10. Edition, 2016, p.492, Nur Centel-Hamide Zafer, Criminal Procedure Law, Beta, 12. Edition, 2015, p. 400)
In order to apply for a search dec, the following three prerequisites must be found together:
1- The presence of an inconvenience or danger in the delay,
2- Apparent truthfulness,
3- Moderation.
The first prerequisite for the search measure is the presence of decency or danger in the delay. This condition is important both for resorting to a search measure and for determining who can decide by. The disadvantage or danger of delay is that if immediate action is not taken, the expected benefit from the measure will not be obtained, it will not be done as required by criminal procedure and in accordance with its purpose. The authority authorized to decide on the measure according to the characteristics of the event will appreciate whether there are any drawbacks to the delay.

The second prerequisite for the search measure is apparent decency. Accordingly, the search measure can only be applied for if there are events that indicate that a right is in danger. dec. Since it will take time to investigate whether there is a right or not, and the danger does not allow for delay, it is necessary to be satisfied with the appearance of a rightful one. In this regard, there should be a suspicion that a violation or crime has been committed.(Buck/Germany, 28.04.2005; Application no:41604)
The third and last prerequisite for the search measure is decisiveness. The main purpose and function of the principle of decisiveness is to limit the public power to be used to ensure the fundamental rights and freedoms of the persons who will be the subjects of the search measure in favor of rights and freedoms, to prevent extremism in interventions and the resulting victimization. Proportionality, also called proportionality in a narrow sense, means that the measure should not impose an “immeasurable obligation” on the relevant parties and should not be of an “intolerable” nature. In the decisions of Buck v. Germany (28.04.2005; Application no:41604) and Smirnov v. Russia (07.06.2007; Application no:71362/01), it was emphasized by the European Court of Human Rights that the legitimate purpose pursued by the intervention should be proportional.
The places that may be the subject of a search are the top, belongings, residence, workplace of the suspect or defendant or another person or other places belonging to him. Although it is possible to conduct a forensic search around the clock, searches in residential, business and other closed places, as a rule, must be carried out during the day. Except for cases where it is inconvenient to be caught red-handed or delayed, as well as a person who has been caught or detained and has decamped, or searches conducted to recapture a prisoner or convict, there will be no nighttime search in these places.
In order for a decisionto be decisively made, there must be a certain doubt that the person or things that make up the subject of the search are located at the place where the search is to be conducted. The law has regulated the intensity of this suspicion in different ways, depending on the person’s involvement in the crime to be searched, and has subjected the search to stricter conditions in front of people unrelated to the crime.
CMK’s 116th. according to the state of force of the article on the date of decriminalization, reasonable doubt should be placed that the suspect or accused may be caught at the end of the search or evidence of a crime may be obtained during searches of a suspect or accused. 6 Of the Regulation on reasonable doubt. in its article it is defined as follows;
“Reasonable doubt is the doubt that is usually felt in the face of concrete events according to the flow of life.
Reasonable doubt is determined taking into account such reasons as the time, place of the search and the behavior, attitudes and forms of the person concerned or those who are with him, the nature of the item that the law enforcement officer doubts has been moved.
In reasonable doubt, there must be signs supporting a notice or complaint.
It is necessary that the suspicion on the specified issues is based on concrete facts. There must be concrete facts that require predicting that a certain thing will be found as a result of dec search or that a certain person will be caught.”
The main innovation introduced by this regulation is that it should be decisively stated that the reasons for reasonable doubt should be based on concrete facts, and it should be stipulated that a certain thing will be found as a result of the search or a certain person will be caught.
Accordingly, a judicial search decision cannot be made based on the possibility of decriminalization in a specific place in the abstract.
For example, during the investigation of a burglary incident that occurred; there is no concrete fact that people who were said to have committed a similar theft before the incident were involved in the incident under investigation, that they had evidence of this crime in their homes, and the suspicion against them is not reasonable doubt.
In the report to be transmitted to the authority that will decide on the search; information explaining reasonable doubt, information and signs about what is the reason for reasonable doubt, the source of the information, what is the thing or person being searched for, the reasons for the belief that a person or thing is in the place to be searched should be explained dec Considering that the search is a serious interference with human rights and freedoms, it is essential that there are signs supporting a reasonable suspicion, notice or complaint and that the suspicion on the issues mentioned is based on concrete facts. In other words, there must be concrete facts that require predicting that a certain thing will be found at the end of dec search or that a certain person will be caught.
CMK’s 117th. in accordance with the article, the property, belongings, housing, place of work or other places belonging to him, as well as other persons not under suspicion of committing a crime, may be searched in order to apprehend the suspect or defendant or obtain evidence of a crime. The concept of ”other persons” also includes legal entities, as well as official bodies and apartments. The fact that a person has the right to abstain from testifying is also not an obstacle to the search. According to the second paragraph of the article, the search for other persons depends on the existence of reasonable suspicion, as well as events that allow it to be assumed that the wanted person or decriminalized evidence is located in the specified places. However, this limitation does not apply to the locations where the suspect or accused is located and the places where he entered while being monitored.
It is mandatory that the search decisionorder or warrant contain certain certain information. (CMK m.119/2) In the decision or order of the search; the verb that constitutes the reason for the search, the person to be searched, the address of the residence or other place where the search will be made, or the time period when the item, decision or order will be valid, should be clearly shown.
As a rule, a search can be made by written order of the Public prosecutor in cases where it is inconvenient to delay the decision of the judge, and in cases where the public prosecutor cannot be reached, the dec enforcement officer will be able to. It is possible to make calls at the residence, at work and in closed areas that are not open to the public only by written order of the Public prosecutor in cases where there is a decency of the judge’s decision or delay. However, in some cases, a search may be made even if there is no judge’s dec decisionand a written search warrant. These cases may be caused by the nature of the incident or the search authority granted by dec dec, as well as the reason why there is no possibility to obtain a search warrant. In these cases, law enforcement officers are tasked with conducting searches, obtaining evidence and apprehending the perpetrators without waiting for a decisionmand a warrant for a decisionmand.
A seizure is a measure of protection that restricts a person’s freedom. Due to this nature dec it is a more extensive process than the top search process. 90/4 of the CMK, which regulates the actions to be taken against the capture and the person who has been captured. in accordance with the article, law enforcement agencies should take measures to prevent the person they catch from escaping, harming himself or others. In this context, a rough top search can be carried out as a precaution after the person is caught. In addition, this search process, which does not need to be decided, should be done as soon as possible and carefully in the form of manual polling. In other words, polling is not a search. Decode is done in this way. Therefore, there is also no need to follow the dec procedure. However, the polling should not reach dec size of the search. (Veli Özer Özbek-Koray Doğan-Pinar Legsız-Ilker Tepe, Criminal Procedure Law, Distinguished, 9. Edition, 2017, p.305) It is not possible to completely remove the clothes on the captured person and search for body pits.
October 4 of the PVSK No. 2559. in its article“ “The police are responsible and authorized to confiscate, prevent, identify, preserve the accused and evidence of the crime when he encounters a crime, regardless of the branch of service, place and time, within the limits of the property where he is on duty, and deliver it to the authorized police …”,
October 6, entitled ”Judicial duties and powers”. in addition to the duties written in this article, the police also performs the duties related to the investigation procedures written in the Code of Criminal Procedure and other legislation.
The police shall put in writing the verbal denunciations and complaints made to him in relation to a crime and the information about the crime that he has learned during his duty.
Upon the information received or the notification or complaint received, or spontaneously encountering a crime, the police immediately take the necessary measures to prevent damage to the health, body integrity or property of people and society at the scene, as well as to prevent the loss or deterioration of evidence of the crime.
A crime is committed that is being processed or who notified the police, crime scene preservation, evidence identification, lost or confiscated after taking measures to be distorted in a hurry, events, persons captured by measures applied immediately to the public prosecutor reports, and the public prosecutor in accordance with the order of the work required for the elucidation of the process of Investigation makes…” – shaped arrangements are considered together when the acquired knowledge, upon a complaint or report a crime or spontaneous encounter with the police at the scene of the health of individuals and society, it is necessary to take the necessary measures immediately to prevent damage to the integrity or property of the body and to prevent the detection, loss or deterioration of evidence of the crime. When taking the necessary measures immediately, it should be taken into account that the purpose of criminal procedure may not be achieved if the measure is not applied, that is, a result such as the loss of evidence may occur, it should be considered that it should be justified and acted in accordance with the principle of moderation during the transaction. Otherwise, the purpose of achieving the material truth will be compromised, and there will be a violation of the rights of the victim and the accused. In this case, the law enforcement agency that receives information that the crime has been committed will be able to conduct a rough search of the person or persons it has captured within the scope of its powers and duties to prevent evidence from being obscured at the scene, and will inform the Public prosecutor as soon as possible of the incident it has seized, the person or persons it has captured, and the measures it has taken.

The law is the objective and non-personal rules made by the legislative body in accordance with the constitutional principles. The “Regulation” is the 124th Amendment of our Constitution. in accordance with the article; The Prime Ministry, ministries and public legal entities have issued written legal rules to ensure the implementation of laws and regulations related to their areas of duty and provided that they do not contradict them. In this case, the regulations may be issued on the condition that they do not extend the limits of the law in order to show the way the laws are applied. In this context, the Regulation on Judicial and Prevention Searches has been issued by the Ministry of Justice to demonstrate the procedures and principles of the search. 8 of the Regulation on Judicial and Preventive Searches. article (a) and (c), as well as the phrase “with the consent of the interested person” in paragraph (f) of the same article and 27. article 30. article 1. in the case filed with a request to cancel the paragraph, the Tenth Chamber of the Council of State authorized to check whether the regulations are contrary to the law dated 13.03.2007 and numbered 6392-948, as well as Regulation 8. the phrase “… in search of a dwelling, workplace, settlement, their attachments and vehicle for the purpose of capture …” in subparagraph (a) of article 30 with the phrase “consent of the interested person” in subparagraph (f) of the same article. article 1. revocation of paragraph 8. by subparagraph (c) of article 27. the Administrative Proceedings Board of the Council of State, which is examining the appeal of the decision made on the rejection of the request to cancel the article, decided on the approval of the cancellation decisions by the number 2257-1117 on 14.09.2012 day 2257. In this sense, the aforementioned Regulation No. 2559 of police powers and Duties Act, No. 2803 on the organization of the gendarmerie, duties and Powers Act, No. 2692 command of Coast Guard Act, No. 5607 Anti-Trafficking Law No. 5442 on Provincial Administration Act, No. 6222 preventing violence in sport law, the Law No. 5188 on private security services, the law on associations No. 5253, No. 2935 Emergency Law No. 1402 martial law, It is seen that the Undersecretariat of Customs No. 485 does not contradict the Decree Law on the Organization and Duties and other relevant legislative provisions, clarifying these regulations and facilitating their implementation. Considering that the Regulation can be issued to demonstrate the application of these laws, provided that it does not contradict the law, to solve problems arising in the provision of public dec, and that the Ministry of Justice has the right to regulate judicial search with a regulation in accordance with the rules of administrative law, 8 of this Regulation. it is understood that the article decisively links the search process to concrete facts and is not contrary to the law.
8 of the Regulation on Judicial and Preventive Searches entitled “Search without decisionmaking”. the current version of the article in force on the date of the crime;
“a) A person who has an arrest warrant or an arrest warrant or a decision to bring it by force, as well as a fugitive who has been given an arrest warrant in absentia when he is caught.,
b) During a rough search of a person who has been caught directly by law enforcement by a judge’s decision or by a written order of the Public prosecutor, or in order to prevent him from harming himself, others, or law enforcement officers who have made the capture,
c) During the search of the detained person’s data made before he was placed in a detention facility,
d) for any reason, after contracting in accordance with the law, law enforcement, or any person whose name is on the run from the hands of much less processed or being processed or handled before showing symptoms yet he has been entered during the capture of the perpetrator of the crime for the purpose of proceeding vehicle, building, and plug-ins in order to capture calls to be made,
e) 1) No. 4926 anti-trafficking law under the second paragraph of Article 17 of illegal goods, all kinds of weapons, ammunition, explosives and drugs resides suspected of any container, packaging or transport it immediately searches for other vehicles,
2) in accordance with the sixth paragraph of Article 17 of the Anti-Smuggling Law No. 4926, persons suspected of storing illegal goods in customs halls and customs gates are searched by customs officers for customs control purposes;
3) No. 4926 anti-trafficking under the second paragraph of Article 18 of the law, the Customs Law No. 4458 27/10/1999 and dated specified in accordance door and enter the customs territory of the other places of the road, or exit you pass and every kind of alone in this place and stopped by authorized officers of transportation in the people you enjoy, and these persons, goods, freight, and if you are above the means of Transport for exploration,
f) the provision of Article 24 of the law and the Turkish Penal Code No. 5237 superior order fulfillment, 25 in accordance with self-defense and necessity, and in Article 26 of the law of the case and the other is used for the right causes and in full compliance with the law in flagrante delicto searches, in order to eliminate the danger to society or individuals, or in terms of indoor places amid calls for help, housing, workplace and residential location to plug in” to enter, and in these cases do not require a search warrant is shaped like.
In the light of these explanations, the subject of the dispute is evaluated;
according to the report dated 31.12.2012; during the intelligence work Ağaköyü Neighborhood, 1. The accused, who was informed that he was selling substances in the form of flares on the street …, started work on 04.01.2013 at 18.30 Ağaköyü Mahallesi, 1. Upon being informed that the accused was using a substance and had a substance on him when he was asked to present his identity card to the officers, when asked if there was a criminal element on him, the accused declared that he was using a substance and that a rough search of the top would be made by the officers, in the event that the defendant took out the white papers from the inner left pocket of his coat and handed them to the officers with his consent in the form of (10) firecrackers, each of which came with a narrow 2 gram and was estimated to be a total of 20 grams;
October 5 of the PVSK No. 2559. according to the article in order to more effectively combat drug crimes law enforcement officials who hired you to follow the events, when they went into the street to investigate the accuracy of the information aforementioned intelligence, and nervous waiting in front of kiraathane exhibit movements observed that the defendant left out from the inside pocket of his jacket the subject of the crime of drugs and drugs to be delivered into the custody of officers suspended in this manner you had taken drugs on; “Study and research to find a hidden thing”, meaning cannot be considered as the search process, therefore exclusive apartment “…the decision to to determine on the defendant, search, and, to be brought to an instance of the original or a certified…” – shaped because of the reversal is not accurate, and therefore the defendant, which allows search to be performed on or written decision to the forensic search of a warrant, it doesn’t need to be investigated, and the obtaining of any drug crime in the subject requires the adoption of whether there is a violation of law.
In this regard, the Supreme Court should decide on the acceptance of the appeal of the Prosecutor General’s Office.
2- Article 192 of the Criminal Code on the accused. article 3. as for whether the effective regret provision regulated in the paragraph will be applied;
article 188 of the TCC No. 5237 entitled “Manufacture and trade of drugs or stimulants”. article 3, which is in force at the time of the crime. the clause; “(3) Drug or stimulant substances within the country selling unlicensed or license in violation of, the sale of supply, giving to others, referring, transports, stores, purchases, accepts the person that holds less than ten years imprisonment and fined twenty thousand, until one day…” are arranged in the form of, and as emphasized in the third paragraph in the article, the various acts of the trade in Narcotic Drugs and Psychotropic Substances is defined as a separate crime.
The sale, sale, supply to others, delivery, transportation, transportation, storage or possession of drugs or stimulants without a license or in violation of a license within the country for a purpose other than use, acceptance or possession constitutes a separate crime according to paragraphs one and two. In order for the crime in the paragraph to occur, any of the electoral actions specified in the article must have been made.

192 of the same Law regulating effective remorse for crimes related to the purchase, acceptance or possession of drugs or stimulants or the use of drugs or stimulants for the manufacture and trade in drugs or stimulants, or for the use of drugs or stimulants. the current version of the article as of the date of the crime and decision;
“(1) the person who had participated in the manufacture of drugs or psychotropic substances trafficking crimes, the authorities before it was heard by other stimulant drugs or substances are manufactured or stored, where associates and report it to the authorities if the accomplices of the information provided in the event of the interception of the drugs or psychotropic substances or provide arrest, the penalty will not be subjected.
(2) the purchase of narcotic or psychotropic substances for use, acceptance or possession of the person before was heard by the authorities, this article who, when, and where giving notice to the authority that you provide to criminals or to make the interception of drug or stimulant drugs, about punishment will not be subjected.
(3) The punishment to be given to the person who voluntarily serves and helps in the occurrence of the crime and the capture of the perpetrator or other accomplices after receiving news of these crimes shall be reduced from one quarter to one half according to the nature of the assistance.
(4) Use of narcotic drugs or stimulants or psychotropic substances for use about the purchase, accept, or wants to avoid being investigated for treatment before state authorities for possession, the penalty will not be subjected” contains provisions.
The reasoning for the item in in the article, in relation to narcotic or stimulant substances in terms of the crimes in the third paragraph, I have arranged a special…to make me regret, or use drugs or psychotropic substances to be purchased for manufacture of or trade in, or possession crimes to be accepted after the start of an investigation in connection with active repentance by showing the capture of the perpetrator of the crime or accomplices emergence and service and helping other people to have the penalty was projected reductions. However, this provision of information must be voluntary. In order to benefit from effective regret, this must happen no later than before the verdict is given…” explanations are given.
Turkish Penal Code No. 5237 “effective regret” the title of the regulation is made under, not being a crime of action, and the action is due to the disposal of a portion of regret about the results of the perpetrator removes or reduces avoid punishment or punishment by the discount from the penalty situation.
Dated 20.12.1993 301-338 as stated in the decision of the General Assembly of punishment, drug trafficking, crimes of the benefit of the welfare of the general public because it is legal and protected by the participants or by the identities of the perpetrators who committed this crime to the hideout of drugs reported in the case of the crime of the subject matter to be seized, thus aimed at protecting the welfare of the general public as the drug supply that contribute to the perpetrators of this crime the crime of the struggle with reductions on a penalty to be determined is projected to have.
192 of the TCC No. 5237, which is the most common situation in practice related to similar crimes, related to the fact that the accused has shown effective remorse after his/her action has been notified by the competent authority. article 3. the article should be focused on. Accordingly, the manufacture or trafficking of narcotic and Psychotropic Substances for use of narcotic and psychotropic substances or who participate in acts of the purchase, acceptance, or that of the person who keeps the offense was committed after being found out by the authorities, the emergence of the crime or the perpetrator and his accomplices to help, and serve to capture regret this state of punishment of the same item and the reason for the discount effective from 1 and 2. it is separated from the state of impunity regulated by its paragraphs by time. While notification and assistance should be provided before being notified by the competent authorities in case of impunity, 3. cooperation is sought after being notified by the official authorities of the effective regret organized in the paragraph and considered to be the reason for the discount.
According to the established judicial decisions and the prevailing views contained in the teaching, Article 192 of the TCC No. 5237. article 3. in order to implement the effective regret provisions contained in the paragraph, the following conditions must be met together:
1- The perpetrator is the subject of Articles 188 and 191 of the TCC No. 5237. he must have committed one of the crimes regulated in the articles.
2- The service and assistance must be provided by the perpetrator himself.
3- Services and assistance should be provided to the investigating or prosecuting authorities.
4- Service and assistance should take place after the crime has been notified by the official authorities, but before the court makes a decision. 158 of CMK No. 5271. the judicial and administrative authorities authorized to investigate a crime, the Ministries of Justice and Interior, the prosecutor’s offices, the police and the gendarmerie organization, the governor’s and prefectures’ offices, embassies and consulates responsible for communicating crimes to the prosecutor’s offices, as shown in the article, should be evaluated within the framework of official authorities.
5- The perpetrator must significantly contribute to the occurrence of his own crime or someone else’s crime, serve and assist in the transmission of information and the occurrence of a crime or the capture of other accomplices.
6- The information provided by the perpetrator should be accurate, the services and assistance provided should be effective and useful to the result.
In order for the perpetrator to benefit from the discount due to effective remorse, he must have assisted and served in the occurrence of his own crime or the capture of accomplices. The concept of accomplices should be understood as someone who participates in a drug crime or commits a crime related to another drug substance; the word “capture” should also be considered “capture of accomplices or identification of who they are”. The perpetrator will benefit from the discount when he contributes to the arrest or identification of his accomplice, the person with whom he bought or sold the drug, or the person who committed another drug crime. In order for the information provided by the perpetrator for the occurrence of his own crime or accomplices to be considered as assistance and service, in addition to the fact that the information that is the subject of the service and assistance is accurate, the service and assistance should also be effective and useful to the result.
Accordingly, captured to tell nobody that doesn’t know the identity of the drug substance or clear a person previously involved in the drug business or fictitious names to give the name of the person that knows the implementation of the provisions are not sufficient for active repentance, the perpetrator is caught, if the person reporting to be condemned or get caught, if the person reporting the crime, the determination of the existence and identity of the offender to be understood that does not have a reason to throw, effective regret provisions should be applied in cases where, along with other evidence, it is found sufficient to accept the guilt of that person and the information provided has not been previously learned by the officials. Are addressed, except that if the perpetrator is caught with drugs and stimulant drugs on the amount of use in any other way that was understood to be prepared to sell to sell the item that holds the report, the crime of selling drugs stimulant drugs and the conditions for the realization of active repentance should be adopted.

In the light of these explanations, the subject of the dispute is evaluated;

Considering the conclusion reached on the first dispute regarding the fact that the operation performed cannot be qualified as a search because the defendant has handed over the marijuana subject to the crime to the officers with his consent, and that the seized drugs were obtained dec accordance with the law; the information that is specified in intelligence to the street, in front of waiting and nervous movements by displaying found here kiraathane about drug sales in that direction except for the quality of the intelligence officials who saw the defendant is not any concrete evidence that their professional experience and impression of the situation they are in they had the right to intervene based on reasonable cause and the defendant resulting from the necessity arise, that occur because of sufficient suspicion of the officials of the pvsk 4/article is within the scope of the measures to be taken under the authority of escape, prevent harm to oneself or others and threatening weapons or other things in order to purify it from making powers, including control by polling on the defendant, before the check is made on an element of a crime is asked whether Defendant “use item and the item at the top that say”, but did not deliver the drugs, the drugs by polling officials declared they would do after the check is delivered to the subject of a crime where the officers of the defendant, the prosecutor’s office in a statement, from his side of the guard “arms up,” located in a pocket on to say (10) Mystery of the declaration delivered to the officers of the flare in the form of check on the defendant by polling officials clearly showed that they would do, who understand that this scope will be seized of the drug on the defendant, as a result of polling, which can be easily found in the inside pocket of the jacket left of cannabis to be delivered to the officers of the law by making it conform to the subject of the crime and evidence of his own guilt that can not be understood and assessed as to the emergence of a service to help, article 192 of the Turkish Commercial Code on the accused. article 3. it should be recognized that there are no conditions for the application of the effective regret provisions set out in paragraph.

However, after the ruling, the decision of the Constitutional Court dated 08.10.2015 and numbered 140-85 dated 24.11.2015 and published in the Official Gazette No. 29542 and No. 53 of the TCC No. 5237 entered into force on 54.11.2015. in the face of the cancellation of some provisions of the article, a re-evaluation is required in terms of the application of the article specified about the defendant.

As of this moment, the Supreme Court has decided to accept the appeal of the Prosecutor General’s Office, to abolish the decision to disrupt the Special Chamber, to amend the 53rd article of the TCC of the Local Court. it should be decided to correct and approve it in terms of its substance.

result:
For the reasons described;
1- ACCEPTANCE of the appeal of the Prosecutor General’s Office of the Supreme Court in terms of both disputes,
2- Supreme Court 10. The decision of the Criminal Court dated 27.11.2015 and numbered 4375-33092 to CANCEL,
3- Duzce 1, other aspects of which are in accordance with the procedure and law. The decision of the Heavy Criminal Court dated 04.06.2013 and numbered 51-186 was published in the Official Gazette dated 24.11.2015 and numbered 29542 dated 08.10.2015 and numbered 140-85 after the date of judgment of the Constitutional Court and the 53rd decision of the Turkish Commercial Code dated 08.10.2015. in view of the revoked provisions of the article, it is necessary to re-evaluate the defendant due to the deterioration of,
However, this issue, which does not require a retrial, is covered by Article 8/1 of Law 5320 of the CMUK No. 1412. which is in force in accordance with Article 322. according to the article, was able to be corrected, since the provision of the Local Court; and instead of removed inequality clause “to be punished for an intentional crime defendants adjudicated 29542 published in the official gazette of the Constitutional Court of the date and day and 140-85 08.10.2015 24.11.2015 No. Article 53 of the Penal Code, by considering the decision to cancel. Articles 1, 2 and 3 of the Article. to apply the paragraphs ”to CORRECT AND APPROVE the sentence by writing,
4- It was unanimously decided at the negotiation held on 24.01.2019 that the file should be transferred to the Public Prosecutor’s Office of the Supreme Court for sending to the scene.