This offence is regulated in Article 120 of the Turkish Penal Code (TCK), in the section on offences against liberty, as follows:
“A public officer who unlawfully searches the person or belongings of an individual shall be sentenced to imprisonment from three months to one year.”
The legislative rationale of the article explains the purpose of the offence and its elements as follows:
“In the text of the article, the unlawful search of the person or belongings of an individual has been defined as an offence independent of the offence of abuse of office.
This provision constitutes the sanction for a particular form of violation of the privacy of private life protected by the United Nations Universal Declaration of Human Rights dated 10.12.1948 (Article 12), the European Convention for the Protection of Human Rights and Fundamental Freedoms dated 4.11.1950 (Article 8, paragraph 1) and our Constitution.
Just as the search of the person or belongings of individuals constitutes an assault on human dignity, it also constitutes an attack on the privacy of private life, which is an extension of personal inviolability.
For example, the unlawful search of a person’s pockets, handbag, suitcase or private car will constitute this offence. Where this search takes place in a dwelling entered without authority, the offence of violation of the inviolability of the domicile is also committed and, for this reason, liability must be determined in accordance with the provisions on real concurrence.
The perpetrator of the offence must be a public officer. In this respect, the offence in question is in the nature of a special offence.
The expression “unlawfully” in the text means a situation not permitted by the legislation in force. It is clear that the offence will not be committed in cases of search permitted by laws and regulations. For the offence to be committed, the public officer must have violated personal liberty by abusing their duty or by exceeding their authority. Thus, the words “unlawfully” encompass the abuse of duty and the exceeding of authority.”
The matter is addressed in Article 20 of our Constitution, which regulates in which situations and under which conditions a search may be carried out:
Everyone has the right to demand respect for his or her private and family life. The privacy of private and family life shall not be violated. (Repealed third sentence: 3/10/2001- 4709/5 art.)
(Amended paragraph: 3/10/2001-4709/5 art.) Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or, again on these grounds, in cases where delay is prejudicial, unless there exists a written order of an authority empowered by law, neither the person, nor the private papers, nor the belongings of anyone shall be searched, nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his or her decision within forty-eight hours from the time of seizure; otherwise, the seizure shall automatically be lifted.
(Additional paragraph: 7/5/2010-5982/2 art.) Everyone has the right to request the protection of his or her personal data. This right includes being informed of the personal data concerning him or her, having access to such data, requesting their correction or deletion, and being informed whether they are used in accordance with their purposes. Personal data may be processed only in cases provided for by law or with the explicit consent of the person. The principles and procedures regarding the protection of personal data shall be regulated by law.
The legal interest protected by the offence is the privacy of private life and the physical and moral inviolability of persons. The aim of penalising this offence is to prevent acts of public officers who carry out unlawful searches that restrict the liberty of persons. As is well known, public power is open to abuse and, when its limits are not clearly drawn, is capable of unjustly restricting the liberty of citizens.
The subject matter of the offence is the human body and the belongings of the person searched. A search of the person covers the searched person’s pockets, shoes and clothes, the bag, suitcase, etc. on them or in their hands, and the compartments of these. Bags and suitcases that persons carry in their hands or on their backs should, for the purposes of this offence, be regarded not as belongings but as part of the person. Belongings, on the other hand, means all movable and immovable property. For example, the dwelling and the vehicle of the person searched may be the subject of the offence of unlawful search. If the offence of unlawful search is committed in a person’s immovable property, the offence of violation of the inviolability of the domicile will also arise. (Our former Penal Code No. 765 covered only the search of the person and did not include the search of belongings.) The act element of the offence is the public officer’s unlawful search of the person or belongings of individuals. A search is an investigative act carried out in order to reach something. This search may be carried out before an offence is committed (preventive search) as well as after an offence has been committed (judicial search).
The expression “unlawfully” in the text of the article serves to emphasise that the act will not constitute an offence if it is carried out lawfully. Some authors state that the expression of unlawfulness was included so as to require a special awareness of unlawfulness on the part of the perpetrator. I do not agree with this view. That is to say, as is also clearly stated in the legislative rationale of the article, I am of the opinion that the purpose of this expression is to indicate that no offence will arise where the act is lawful. Moreover, had the legislature sought a special awareness on the part of the perpetrator, it would have worded the text of the article as “with an awareness of unlawfulness”. Unlawfulness may arise in two situations. The first is where a search is carried out without any search warrant at all, or where there is a lawful search warrant but the officer carries out the search by going beyond the limits of that warrant. The second situation is the failure to comply with the rules that must be observed during the search. For example, where two persons from the council of elders of that locality or from the neighbours, who must be present at a search carried out without a prosecutor, are not made present (Code of Criminal Procedure (CMK) 119/4) and the search is nevertheless carried out. Even though the public officers have a lawful search warrant in hand, the offence of unlawful search will have been committed because they did not carry out the search in accordance with the law.
This offence is a special offence and can only be committed by public officers. A search carried out by persons who are not public officers will constitute not the offence of unlawful search but, depending on the conditions and circumstances, the offence of violation of the privacy of private life. However, not every unlawful search carried out by a public officer will constitute the offence of unlawful search. As a rule, the power to search lies with law enforcement forces. An unlawful search carried out by a civil servant in a public institution who has no search power and no duty whatsoever in this regard (for example, a search carried out by a teacher at a school) will constitute not the offence of unlawful search but the offence of abuse of office. As for the victim of the offence, no particular characteristic is required; anyone whose person or belongings are unlawfully searched may be a victim of this offence. Turning to the mental element of the offence of unlawful search, this offence can only be committed intentionally. As is well known, under our current Penal Code the negligent forms of offences are punishable only where there is a provision to that effect. Since there is no such provision in the article, this offence will not arise in cases of negligence such as imprudence, carelessness, etc. However, no special motive or purpose is required for the offence; it will suffice that the perpetrator merely knows that the search is unlawful and wills it. Furthermore, this offence may also be committed with conditional intent.
Since the offence of unlawful search is a mere conduct offence, the offence is committed as soon as the act begins. Furthermore, since it is a continuing offence, the offence is constituted as soon as the act begins, but the offence continues for as long as the continuation lasts. If the acts of execution can be divided into parts, the provisions on attempt may also apply. For example, where a public officer tries to search a person unlawfully but the search cannot be carried out because the person to be searched uses force, we can say that an attempt to commit the offence has occurred. The offence of unlawful search at the same time also constitutes the offence of abuse of office. However, since, for an act to fall within the offence of abuse of office, there must be no special provision governing it, and since a special provision has been made for unlawful search, the perpetrator will not additionally be held liable for the offence of abuse of office. As regards concurrence of offences, as we stated above, if the inviolability of the domicile has also been violated in addition to the unlawful search, the provisions on real concurrence must be applied and punishment must also be imposed for that offence. Where other offences are also committed alongside the unlawful search (for example, intentional injury, sexual harassment, insult, etc. during the search), these too must be punished as separate offences. As regards participation, where all the persons involved in the search are public officers, there will be joint perpetration. Since other persons cannot be perpetrators of special offences, civilians may only be punished as instigators of or accessories to the offence.
Since the perpetrator of the offence is a public officer, where the offence is committed in the course of a judicial duty, the investigation will be conducted directly in accordance with the general provisions. However, if the offence was committed while the perpetrator(s) were performing an administrative duty as preventive law enforcement, the provisions of Law No. 4483 on the Trial of Civil Servants and Other Public Officials will apply. The court with subject-matter and territorial jurisdiction is the Criminal Court of First Instance of the place where the offence was committed.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/haksiz-arama-sucu-2