Appointment of a secret investigator
APPOINTMENT OF A SECRET INVESTIGATOR
Currently, in the face of increasingly increasing and complex organized crimes, there is a prevailing belief that classical protection measures will not be sufficient both in accessing the evidence of the crime and in combating organized crimes. For this reason, some secret protection measures were needed. One of them is the assignment of a secret investigator. The assignment of a secret investigator is an effective protection measure applied to the collection of information, documents and evidence necessary for the crimes that criminal organizations intend to commit. In particular, law enforcement officials placing their own members into a criminal organization, closely monitoring the activities of the organization and collecting evidence of crimes shows itself as an important protection measure in practice. Together with this importance, since the assignment of a confidential investigator constitutes a significant interference with fundamental rights and freedoms, it is of great importance that the conditions for applying for this measure are clearly defined in the law. As of today, the legal regulation in question is the 139th part of the fourth part of the Criminal Procedure Code No. 5271 entitled “Protection Measures”, which is included in the sixth part entitled “Monitoring by Secret Investigator and Technical Means”. In the article, it is arranged under the title of the article ”Assignment of a confidential investigator”.
CODE OF CRIMINAL PROCEDURE (CMK) M.139
(1) (Changed: 21/2/2014–6526/13 art.) If there are strong grounds of suspicion based on concrete evidence that the crime subject to investigation has been committed and no evidence can be obtained in any other way, public officials may be assigned as secret investigators. The assignment to be made in accordance with this article is decided by the judge (Last abrogated sentence: 24/11/2016-6763/27 art.).
(2) The identity of the investigator may be changed. Legal actions can be carried out with this identity. If it is mandatory for the creation and maintenance of the identity, the necessary documents can be prepared, changed and used.
(3) The decision and other documents related to the assignment of the investigator shall be kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator is also kept secret after the end of his/her duty. (Additional sentences: October 15, 2017 Decree Law-694/142 art.; Accepted in kind: 1/2/2018-7078/137 md.) If it is mandatory for the investigator to be listened to as a witness during the prosecution phase, he is listened to in a private environment without those who have the right to be present at the hearing, or by changing his voice or image. In this case, the provision of Article 9 of the Witness Protection Law dated 27/12/2007 and numbered 5726 is applied by comparison.
(4) The investigator is obliged to conduct all kinds of research related to the organization whose activities he is assigned to monitor and to collect evidence related to crimes committed within the framework of the activities of this organization. (Additional sentence: 28/3/2023-7445/19 Oct.) The judge may allow the investigator to make audio or video recordings for the purpose of collecting evidence in public places and workplaces in terms of the crime contained in sub-paragraph (a) of paragraph (1) of paragraph seven.
(5) The investigator may not commit a crime while performing his/her duty and may not be held responsible for the crimes committed by the organization to which he/she is assigned.
(6) Personal information obtained through the assignment of an investigator may not be used except for the criminal investigation and prosecution for which it was assigned. (Oct.: 21/2/2014–6526/13 md.) Personal information that is not connected with the crime is immediately destroyed.
(7) The provisions of this article can only be applied in relation to the crimes listed below:
a) In accordance with the Turkish Criminal Code;
Manufacture and trafficking of drugs or stimulants, regardless of whether they are processed within the framework of the organization’s activities (article 188), (1)
Establishment of an organization for the purpose of committing a crime (article 220, except for paragraphs two, seven and eight),
An armed organization (article 314) or the provision of weapons to these organizations (article 315).
b) Crimes of arms trafficking (article 12) defined in the Law on Firearms and Knives and Other Tools.
c) The crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
JUSTIFICATION OF ARTICLE 139 OF THE CODE OF CRIMINAL PROCEDURE
[1] If there are strong grounds of suspicion that the crime subject to investigation has been committed and no evidence can be obtained in any other way, public officials may be assigned as secret investigators by the decision of the judge or the Public prosecutor in cases where it is inconvenient to delay.
[2] The identity of the investigator may be changed. Legal actions can be carried out with this identity. If it is mandatory for the creation and maintenance of the identity, the necessary documents can be prepared, changed and used.
[3] The decision on the assignment of the investigator and other documents shall be kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator is also kept secret after the end of his/her duty.
[4] The investigator is obliged to conduct all kinds of research related to the organization whose activities he is assigned to monitor and to collect evidence related to crimes committed within the framework of the activities of this organization.
[5] The investigator may not commit a crime while performing his/her duty and cannot be held responsible for the crimes committed by the organization to which he/she is assigned.
[6] Personal information obtained through the assignment of an investigator cannot be used except for the criminal investigation and prosecution for which it was assigned.
[7] The provisions of this article may only be applied in relation to the offences listed below:
a) In accordance with the Turkish Criminal Code;
Manufacture and trafficking of drugs or stimulants (article 188),
Establishment of an organization for the purpose of committing a crime (article 220, except for paragraphs two, seven and eight),
An armed organization (article 314) or the provision of weapons to these organizations (article 315).
b) Crimes of arms trafficking (article 12) defined in the Law on Firearms and Knives and Other Tools.
c) The crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
PRECEDENT SUPREME COURT DECISIONS
COURT : Criminal Court of First Instance
NUMBER : 2013/461 E ., 2015/468
CRIMES : Abuse of trust, forgery of a private document
PROVISIONS : Conviction
OPINION OF THE COMMUNIQUÉ : Approval
The provisions established about the accused; as of the date of the decision, the provisions of the appellant in accordance with the first paragraph of Article 260 of the Criminal Procedure Code 5271 (Law 5271), which is in force in accordance with Article 8 of Law 5320, amended by Article 33 of Law 6723, are subject to appeal in accordance with article 305 of the Criminal Procedure Procedure Code 1412 (Law 1412), which is in force on the date of the decision, the provisions of the appellant have the right and authority to appeal, article 310 of Law 1412, in accordance with the first paragraph of article 260 of the Criminal Procedure Code 5271 (Law 5271), which is in force on the date of the decision, Article 510 of the Criminal Procedure Code 1412, article 310 of the Criminal Procedure Code 1412, article 310 of the Criminal Procedure Code 1412, article 310 of the Criminal Procedure Code 1412, article 310 of the Criminal Procedure Code 1412, article 310 of the Criminal Procedure Code according to the requirement that the appeal request is in time, in accordance with Article 317 of the same Law, it was determined as a result of the preliminary examination that there was no situation that required the rejection of the appeal request, and the necessity was considered:
LEGAL PROCESS
Istanbul Anatolia 7. According to the decision of the Criminal Court of First Instance dated 15.09.2015 and numbered 2013/461 Esas, 2015/468 Decision of the Criminal Court of First Instance, in accordance with the first paragraph of Article 155 of the Turkish Criminal Code 5237 (second paragraph of article 35, second paragraph of article 62, second paragraph of article 52, article 58 and article 53 of the crime of abuse of trust, article 5237, 2 months 15 days imprisonment and 20 TL judicial money to be punished with punishment, deprivation of rights and application of the provisions of repetition; in accordance with the first paragraph of Article 207, article 62, article 58 and article 53 of the Law No. 5237, it was decided to punish him with a 10-month prison sentence, deprivation of rights and the application of repetition provisions for the crime of forgery in a private document.
REASONS FOR APPEAL
The request of the accused to appeal consists of the will to appeal the provisions.
III. EVENTS AND FACTS
On 19.07.2013, the defendant rented a car with license plate number 06 BY 9432 from rent a car owned by participant … for 15 days, took the vehicle from Istanbul to Izmir province and wanted to sell it there, upon notification to the Izmir Public Order Branch Office Auto Theft Bureau, the police officers contacted the defendant by phone, said they wanted to buy the vehicle, then met the defendant at the bus station, the defendant introduced himself as … and stated that the vehicle subject to the crime also belonged to him, and the police officers on duty about the sale of the vehicle he agreed, it has been claimed and accepted that he signed the ordinary sales contract arranged between the parties … on Dec, attempted to abuse trust in this way and committed the crimes of forgery in a private document.
In his defense, the defendant stated that he was going to receive 5,000 TL from a friend named Hasan …, that he wanted to sell the vehicle to Hasan … in order to get this money, as a matter of fact, this person had reported him.
It has been determined that the original sales contract subject to Decriminalization was found among the files.
The court accepted that the defendant committed the crimes of attempted abuse of trust and forgery in a private document and established the provisions of the conviction subject to appeal.
reason
In addition to the crimes listed in Article 139 of Law No. 5271, as specified in the decision of the General Criminal Assembly of the Supreme Court dated 01.07.2021 and numbered 2018/18-323 Esas, Decision No. 2021/330, it is possible for law enforcement officers to act in accordance with the order of the Public prosecutor and within the scope of their general powers and duties, in order to identify the crime and its perpetrator and collect evidence related to the crime, without inciting or encouraging crime, in accordance with articles 160 and its continuation of the same Law. The officer in this situation is considered to be a “judicial law enforcement officer conducting a secret investigation”, not a secret investigator. It is clearly stated in the same decision that the evidence obtained by a judicial law enforcement officer conducting a secret investigation without inciting or instigating a crime will be in accordance with the law, but this officer can never act as a provocative agent, creating a criminal intent that was not previously present in the perpetrator, and he cannot incite the perpetrator to commit a crime.
Considering the concrete incident in the light of these explanations, it was understood that the investigating judicial law enforcement officers called the phone number specified in the notification as a customer and arranged a meeting with the defendant by declaring that they wanted to buy the vehicle numbered 06 BY 9432 and arranged a sales contract between them, and that judicial law enforcement officers encouraged the defendant to commit a crime by acting as a Deceptive agent, and decided to convict the defendant instead of acquitting him of the crimes, without considering that the evidence obtained by illegal methods could not be based on the verdict, it was considered illegal.
decision
For the reasons explained in the justification section, Istanbul Anadolu 7. Since the defendant’s appeal requests for the decision of the Criminal Court of First Instance dated 15.09.2015 and numbered 2013/461 Esas, 2015/468 Decision are considered in place, the provisions should be overturned unanimously, in accordance with Article 321 of Law No. 1412, contrary to the Communiqué,
The case file is submitted to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals for submission to the Court,
the decision was made on 06.09.2023.