APPOINTMENT OF A SECRET INVESTIGATOR
Currently, in the face of increasing and complex organized crimes, there is a belief that classical protection measures will not be sufficient both in reaching the evidence of the crime and in combating organized crimes. For this reason, some secret protection measures have been needed. One of these is the appointment of a secret investigator. The appointment of a secret investigator is an effective protection measure applied in the collection of information, documents and evidence necessary for the crimes that criminal organizations aim to commit. In particular, it is an important protection measure in practice for law enforcement officers to closely monitor the activities of the organization and collect evidence of crime by placing their own personnel within the criminal organization. In addition to this importance, since the appointment of a secret investigator constitutes a significant interference with fundamental rights and freedoms, it is of great importance to clearly define the conditions for the application of this measure in the law. As of today, the legal regulation in question is regulated in Article 139 of the Criminal Procedure Law No. 5271, under the article title “appointment of a secret investigator” in the sixth section titled “Secret Investigator and Monitoring by Technical Means” in the fourth part titled “Protection Measures”.
CRIMINAL PROCEDURE CODE (CMK) ART.139
(1) (Amended: 21/2/2014-6526/13 Art.) In the event that there are strong grounds for suspicion based on concrete evidence that the crime under investigation has been committed and no other evidence can be obtained, public officials may be assigned as secret investigators. The appointment pursuant to this Article shall be decided by the judge (Repealed last sentence: 24/11/2016-6763/27 Art.).
(2) The identity of the investigator may be changed. Legal transactions may be carried out with this identity. In case it is mandatory for the creation and maintenance of the identity, the necessary documents may be prepared, changed and used.
(3) The decision on the appointment of an investigator and other documents shall be kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator shall be kept confidential even after the termination of his/her duty. (Additional sentences: 15/8/2017 KHK-694/142 Art.; Adopted as it is: 1/2/2018-7078/137 Art.) If it is mandatory for the investigator to be heard as a witness during the prosecution phase, he/she shall be heard in private without the presence of those who have the right to be present at the hearing or by changing his/her voice or image. In this case, the provision of Article 9 of the Witness Protection Law dated 27/12/2007 and numbered 5726 shall apply by analogy.
(4) The investigator is obliged to conduct all kinds of investigations regarding the organization whose activities he is assigned to monitor and to collect evidence related to the crimes committed within the framework of the activities of this organization. (Additional sentence: 28/3/2023-7445/19 Art.) The judge may allow the investigator to make audio or video recordings in order to collect evidence in public places and workplaces in terms of the crime specified in subparagraph (1) of paragraph (a) of the seventh paragraph.
(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 appointment of an investigator may not be used for purposes other than the criminal investigation and prosecution for which the investigator has been appointed. (Addition: 21/2/2014-6526/13 Art.) Personal information not related to the crime shall be destroyed immediately.
(7) The provisions of this Article may only be applied in relation to the following offenses
a) Crimes under the Turkish Penal Code;
Manufacture and trafficking in narcotics or stimulants, regardless of whether it is committed within the framework of an organization (Article 188), (1)
Establishing an organization for the purpose of committing a crime (Article 220, except paragraphs two, seven and eight),
Armed organization (Article 314) or providing arms to such organizations (Article 315).
b) Arms smuggling offenses as defined in the Law on Firearms, Knives and Other Instruments (Article 12).
c) Offenses defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Heritage.
REASON FOR ARTICLE 139 of the Criminal Procedure Code
[1] In the event that there are strong grounds for suspicion that the offense subject to investigation has been committed and evidence cannot 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 can be changed. Legal transactions can be carried out with this identity. Necessary documents may be prepared, changed and used if necessary to establish and maintain the identity.
[3] The decision on the appointment of an investigator and other documents shall be kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator shall be kept confidential even after the termination of his/her assignment.
[4] The investigator is obliged to conduct all kinds of investigations regarding the organization whose activities he/she is assigned to monitor and to collect evidence related to the 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 may not be held responsible for the crimes committed by the organization to which he/she is assigned.
[6] Personal information obtained through the appointment of an investigator may not be used outside of the criminal investigation and prosecution for which the investigator has been appointed.
[7] The provisions of this article may only be applied in relation to the following crimes:
a) offenses under the Turkish Penal Code;
Manufacture and trafficking in narcotics or stimulants (Article 188),
Establishing an organization for the purpose of committing a crime (Article 220, except paragraphs two, seven and eight),
Armed organization (Article 314) or providing arms to such organizations (Article 315).
b) Arms smuggling offenses as defined in the Law on Firearms, Knives and Other Instruments (Article 12).
c) Offenses defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Heritage.
PRECEDENT JUDICIAL COURT DECISIONS
COURT :Criminal Court of First Instance
NUMBER : 2013/461 E., 2015/468
CRIMES : Abuse of trust, forgery of private documents
CONVICTIONS : Conviction
OPINION ON NOTIFICATION : Approval
The judgments established against the defendant; are appealable in accordance with Article 305 of the Code of Criminal Procedure No. 1412 (Law No. 1412), which is in force as of the date of the decision pursuant to Article 8 of the Law No. 5320 amended by Article 33 of the Law No. 6723, As a result of the preliminary examination, it has been determined that the appellant has the right and authority to appeal the provisions pursuant to the first paragraph of Article 260 of the Criminal Procedure Law No. 5271 (Law No. 5271) in force on the date of the decision, that the request for appeal is in due time pursuant to Article 310 of the Law No. 1412, and that there is no situation requiring the rejection of the request for appeal pursuant to Article 317 of the same Law:
LEGAL PROCESS
With the decision of Istanbul Anatolian 7th Criminal Court of First Instance dated 15.09. 2015 dated 15.09.2015 and numbered 2013/461 Main, 2015/468 Decision, the defendant was sentenced to 2 months and 15 days imprisonment and a judicial fine of 20 TL, deprivation of rights and application of the provisions of repetition, for the crime of abuse of trust, pursuant to the first paragraph of Article 155, the second paragraph of Article 35, the second paragraph of Article 62, the second paragraph of Article 52, the second paragraph of Article 58 and Article 53 of the Turkish Penal Code No. 5237 (Law No. 5237); for the crime of forgery of private documents, to be sentenced to 10 months imprisonment pursuant to the first paragraph of Article 207, Article 62, Article 58 and Article 53 of the Law No. 5237, to be sentenced to deprivation of rights and to apply the provisions of recurrence.
GROUNDS OF APPEAL
The defendant’s request for appeal consists of his will to appeal the judgment.
III. FACTS AND EVENTS
19.07. On 19.07.2013, upon the notification to the Izmir Public Security Branch Directorate Auto Theft Bureau Directorate that the defendant wanted to take the vehicle with the license plate number 06 BY 9432, which he rented for 15 days from the rent a car owned by the participant …, from Istanbul to Izmir and sell it there, the police officers on duty contacted the defendant by phone, they said that they wanted to buy the vehicle, then they met the defendant at the bus station, the defendant said that he … and stating that the vehicle subject to the crime belonged to him, he agreed on the sale of the vehicle with the police officers in charge, signed the ordinary sales contract between the parties on behalf of …, and thus committed the crimes of attempted abuse of trust and forgery of private documents.
In his defense, the defendant stated that he had a receivable of 5.000 TL from his friend named Hasan …, that he told Hasan … that he wanted to sell the vehicle he had in order to get this money, and that this person reported him.
It was determined that the original of the sales contract subject to the crime was found among the file.
The court accepted that the defendant committed the crimes of attempting to abuse trust and forgery of private documents and the conviction provisions subject to appeal were established.
REASON
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 01.07.2021 and numbered 2018/18-323 Main, 2021/330 Decision, except for the crimes listed in Article 139 of the Law No. 5271, it is possible for law enforcement officers to carry out activities in line with the order of the public prosecutor and within the scope of their general powers and duties in accordance with Articles 160 and following of the same Law, in order to determine the crime and its perpetrator and to collect evidence related to the crime, without instigating and encouraging the crime. The officer in this situation is not considered as a secret investigator, but as a “judicial law enforcement officer conducting a secret investigation”. It is clearly stated in the same decision that the evidence obtained by the judicial law enforcement officer conducting a secret investigation without inciting or instigating a crime will be in accordance with the law, but that this officer can never act as a provocative agent and cannot incite the perpetrator to commit a crime by creating the intent to commit a crime that was not previously present in the perpetrator.
When the concrete case is evaluated in the light of these explanations; when it is understood that the investigating judicial law enforcement officers called the phone number specified in the notice as a customer and declared that they wanted to buy the vehicle with the license plate number 06 BY 9432, arranged a meeting with the defendant and arranged an ordinary sales contract between them, it is understood that the judicial law enforcement officers acted as a provocative agent and encouraged the defendant to commit a crime, and it was deemed unlawful to decide to convict the defendant instead of acquitting him of the imputed crimes without considering that the evidence obtained by unlawful method cannot be taken as a basis for the judgment.
DECISION
For the reasons explained in the justification section, since the defendant’s appeal requests regarding the decision of the Istanbul Anatolian 7th Criminal Court of First Instance dated 15.09.2015 and numbered 2013/461 Main, 2015/468 Decision are deemed appropriate, the judgments shall be DISMISSED unanimously, contrary to the Communiqué, in accordance with Article 321 of the Law No. 1412,
The case file is referred to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the Court,
Decided on 06.09.2023.
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