Events
During the investigation conducted within the scope of the investigation conducted by the Police Department teams on a tip-off, B.M.D. he has been taken into custody. To search on it, B. Dec.M.D.when you go to nin’s house, B.B. and the applicant was found at home. During the search, various amounts of narcotics and sensitive decanters, bags used for drug packaging and some money were seized.
During the search conducted on the applicant, a mobile phone and a SIM card inserted into this phone were seized and taken under police custody. At the request of the Prosecutor General’s Office (Prosecutor General’s Office) approved the confiscation process by the decision of the Magistrate’s Office and allowed the examination to be carried out on the mobile phone and SIM card. There is no information in the individual application file about whether the examination was carried out on the applicant’s mobile phone or what the result was if it was carried out.
13. The High Criminal Court (Court) reached the conclusion that he committed the crime of drug possession, decided that the applicant had been sentenced to 8 months and withdrew the disclosure of the conviction, as well as the criminal property registered in the judicial trust No. 5237 of the 54 of the Turkish Criminal Code. he ruled on confiscation in accordance with his article. The applicant’s mobile phone registered in the judicial trust has also been confiscated. No justification has been explained in the decision regarding the paragraph of the provision on the confiscation of the mobile phone and SIM card belonging to the applicant. The objection of the applicant against this decision is 14. It was rejected by the Criminal Court.
Claims
The applicant claimed that his property right had been violated due to the confiscation of his mobile phone, which could not be determined to have been used in the crime.
Evaluation Of The Court
Regulation of rights and freedoms, interventions and limitations to be made to them by law is one of the most important elements of a democratic rule of law that prevents arbitrary interference with these rights and freedoms and ensures the security of law.
In the concrete case, within the scope of the criminal investigation conducted against the applicant, the applicant’s mobile phone was confiscated and then it was decided to confiscate the mobile phone. 54 of Law No. 5237 as the legal basis for the confiscation decision. its substance is shown in Fig. In the first sentence of paragraph (1) of this article, it is stated that the confiscation of goods used in the commission of a deliberate crime or allocated to the commission of a crime or caused by a crime will be ruled out – provided that it does not belong to well-meaning third parties.
However, it is not enough that there is a legal basis for the form of intervention, and the connection of a concrete event with this law should be shown based on acceptable reasoning. The applicant’s mobile phone was confiscated, and by the decision of the Magistrate’s Office, it was allowed to conduct an examination of the applicant’s mobile phone. However, there is no explanation for the review and its results in the Court’s decision.
At no stage of the investigation was there an assessment made that the applicant’s mobile phone was used in the crime, and it was not alleged that the applicant used this mobile phone to obtain the drugs he needed. In this case, since the court decision does not show that the applicant’s mobile phone was used to commit a drug possession offence in order to use it, it cannot be said that the concrete incident was connected to the law. In this respect, it has been concluded that the interference with the applicant’s right to property lacks a legal basis.
The Constitutional Court has decided that the right to property has been violated on the grounds described.