APPOINTMENT OF A SECRET INVESTIGATOR
Currently, it is widely believed that classical protection measures will not be sufficient both in reaching the evidence of organized crimes and in combating organized crimes in the face of increasingly complex organized crimes. Therefore, there is a need for some secret protection measures. One of these is the assignmenturrently, it is widely believed that classical protection measures will not be sufficient both in reaching the evidence of organized crimes and in combating organized crimes in the face of increasingly complex organized crimes. Therefore, there is a need for some secret protection measures. One of these 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 officers placing their own personnel within the criminal organization and closely monitoring the organization’s activities and collecting evidence of crime is a significant protection measure in practice.n particular, law enforcement officers placing their own personnel within the criminal organization and closely monitoring the organization’s activities and collecting evidence of crime is a significant protection measure in practice. Along 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 relevant legal regulation is Article 139, which is included in the sixth section titled “Undercover Investigator and Monitoring with Technical Means” of the fourth part titled “Protective Measures” of the Criminal Procedure Code No. 5271.s of today, the relevant legal regulation is Article 139, which is included in the sixth section titled “Undercover Investigator and Monitoring with Technical Means” of the fourth part titled “Protective Measures” of the Criminal Procedure Code No. 5271. 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) (Amended: 21/2/2014–6526/13 art.1) (Amended: 21/2/2014–6526/13 art.) Public officials may be assigned as undercover investigators if there are strong reasons for suspicion based on concrete evidence that the crime in question has been committed and if evidence Amended: 21/2/2014–6526/13 art.) Public officials may be assigned as undercover investigators if there are strong reasons for s(2) The identity of the investigator may be changed. Legal transactions may be carried out with this identity. If necessary for the creation and maintenance of the identity, the required documents may be prepared, changed and used.
(3) The decision regarding the assignment of an investigator and other documents are kept at the relevant Republic Prosecutor’s Office. The identity of the investigator is kept confidential even after the end of his/her duty3) The decision regarding the assignment of an investigator and other documents are kept at the relevant3) The decision regarding the assignment of an investigator and other documents are kept at the relevant Republic Prosecutor’s Office. The identity of the investigator is kept confidential even after the end of his/her duty. (3) The decision regarding the assignment of an investigator and other documents are kept at the relevant Republic Prosecutor’s Office. The identity of the investigator is kept confidential even after the end of his/her duty. (Additional sentences: October 15, 2017 Decree Law-694/142 art.; Accepted exactly: 1/2/2018-7078/137 md.) If the investigator is required to be heard as a witness during the prosecution phase, he/she is heard in a private setting without those who have the right to be present at the hearing or with his/her voice or image altered. 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.(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 thi(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 cannot commit a crime while performing his/her duties and cannot be held responsible for the crimes committed by the organization he/she is assigned to.
(6) Personal information obtained through the assignment of an investigator may not be used other than in the criminal investigation and prosecution for which it was assigned. (Amendment: 21/2/2014–(6) Personal information obtained through the assignment of an investigator may not be used other than in the criminal investigation and prosecution for which it was assigned. (Amendment: 21/2/2014–6526/13 art.) Personal information(6) Personal information obtained through the assignment of an investigator may not be used other than in the criminal investigation and prosecution for which it was assigned. (Amendment: 21/2/2014–6526/13 art.) Personal information that is not connected with the crime is immediately destroyed.
(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;
Manufacturing and trading of drugs or stimulants, regardless of whether they are committed within the framework of an organizational activity (article 188), (1)
Establishing an organization for the purpose of committing a crime (article 220, excluding paragraphs two, seven and eight).
Armed organizations (article 314) or providing weapons to these organizations (article 315).
b) Weapons smuggling (article 12) crimes defined in the Law on Firearms, Knives and Other Toolsrmed organizations (article 314) or providing weapons to these organizations (article 315).
b) Weapons smuggling (article 12) crimes defined in the Law on Firearms, 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] In cases where there are strong reasons to suspect that the crime subject to investigation has been committed and evidence cannot be obtained otherwise, public officials may be assigned as undercover investigators by the judge or, in cases where there is a risk of delay, by the prosecutor’s office. In cases where there are strong reasons to suspect that the crime subject to investigation has been committed and evidence cannot be obtained otherwise, public officials may be assigned as undercover investigators by the judge or, in cases where there is a risk of delay, by the prosecutor’s office.
[2] The identity of the investigator can be changed. Legal actions can be taken with this identity. If necessary for the creation and maintenance of the identity, the required documents can be prepared, changed and used.
[3] The decision regarding the appointment of an investigator and other documents are kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator is kept confidential even after the end of his/her duty3] The decision regarding the appointment of an investigator and other documents are kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator is kept confidential even after the end of his/her duty.
[4] The investig The decision regarding the appointment of an investigator and other documents are kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator is kept confidential even 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 cannot commit a crime while performing his/her duties and cannot be held responsible for the crimes committed by the organization he/she is assigned to.
[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[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 a[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) Included in the Turkish Penal Code;
Manufacture and trade of drugs or stimulants (article 188),
Establishing an organization for the purpose of committing a crime (article 220, excluding paragraphs two, seven and eight).
Armed organizations (article 314) or providing weapons to these organizations (article 315).
b) Weapons smuggling (article 12) crimes defined in the Law on Firearms, 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.,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, As a result of the preliminary examination, it has been determined that there is no situation that would require the rejection of the appeal request in accordance with Article 317 of the same Law, and it has been deemed necessary:
LEGAL PROCESS
Istanbul Anatolia 7stanbul 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 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. accordance with the first paragraph of Article 207, article 62, article 58 and article 53 of 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 behalf of Dec, attempted to abuse trust in this way and committed the crimes of forgery in a private document.it has been claimed and accepted that he signed the ordinary sales contract arranged between the parties on behalf of Dec, attempted to abuse trust in this way and committed the crimes of forgery in a private document.
In his defensit has been claimed and accepted that he signed the ordinary sales contract arranged between the parties on behalf of 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.he 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 rationale section, Istanbul Anatolian 7thECISION
For the reasons explained in the rationale section, Istanbul Anatolian 7th 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 unanECISION
For the reasons explained in the rationale section, Istanbul Anatolian 7th Since the defendant’s appeal requests for the decision of the Criminal Court of F