APPOINTMENT OF AN UNDERCOVER INVESTIGATOR
In the face of the increasing and complex organized crimes today, the idea prevails that classical protection measures will not be sufficient both to access criminal evidence and to combat organized crimes. For this reason, some secret protection measures were needed. One of them 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 intend to commit. In particular, it is an important protection measure in practice for law enforcement agencies to closely monitor the activities of the organization by placing their own personnel within the criminal organization and collecting criminal evidence.
In addition to this importance, since the appointment of a confidential investigator constitutes a significant interference with fundamental rights and freedoms, it is of great importance that the conditions for the implementation of this measure are clearly defined in the law. As of today, the legal regulation in question has been regulated in the article entitled “Secret Investigator Assignment” of the sixth part of the Article 139 of the Criminal Procedure Code No. 5271 entitled “Protection Measures” and the fourth part entitled “Secret Investigator and Monitoring by Technical Means”.
ARTICLE 139 OF THE CRIMINAL PROCEDURE CODE (CMK)
(1) (Changed: 21/2/2014-6526/13 art.) Public officials may be assigned as secret investigators if there are strong grounds of suspicion based on concrete evidence that the crime subject to investigation has been committed and no other evidence can be obtained. According to this article, the appointment is made by the judge. (Last abrogated sentence: 24/11/2016-6763/27 art.)
(2) The identity of the investigator may be changed. Legal action can be taken with this identity. If it is mandatory for the creation and maintenance of an identity, the necessary documents can be edited, changed and used.
(3) The decision and other documents related to the appointment of an 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 mission. (Additional sentences: October 15, 2017 Decree Law-694/142 art.; Accepted in kind: 1/2/2018-7078/137 md.) If the investigator is obliged to be listened to as a witness during the prosecution phase, he is listened secretly without the presence of 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 comparatively.
(4) The investigator is obliged to conduct all kinds of investigations about 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 in public places and workplaces in order to collect evidence in terms of the crime specified in subparagraph (a) of subparagraph (1) of the seventh paragraph.
(5) The investigator may not commit a crime during his/her duty and cannot be held responsible for the crimes committed by the organization to which he/she is assigned.
(6) Personal data obtained through the appointment of an investigator may not be used except for the criminal investigation and prosecution to which the investigator has been appointed. (Oct.: 21/2/2014-6526/13 md.) Personal data that has nothing to do with the crime is immediately destroyed.
(7) The provisions of this article may be applied only in relation to the following offences:
a) The crimes contained in the Turkish Criminal Code;
Manufacture and trade of drugs or stimulants, regardless of whether they are within the organization (article 188), (1)
Establishing an organization for the purpose of committing a crime (article 220, except for the second, seventh and eighth paragraphs),
To establish an armed organization (article 314) or to provide weapons to these organizations (article 315).
b) Crimes of arms trafficking defined in the Law on Firearms and Knives and Other Tools (article 12).
c) The crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
139 Of the Code of Criminal Procedure.
THE REASON FOR THE ARTICLE
[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 a judge or Public prosecutor in cases where delay is inconvenient.
[2] The identity of the investigator may be changed. Legal actions can be carried out with this identity. The necessary documents for the identification and protection of identity can be prepared, changed and used if necessary.
[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 is also kept secret after the end of his/her mission.
[4] The investigator is obliged to conduct any kind of investigation about 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] The personal information obtained by the appointment of the investigator cannot be used except for the criminal investigation and prosecution to which the investigator has been appointed.
[7] The provisions of this article may only be applied in relation to the following offences:
a) The crimes contained in the Turkish Criminal Code;
Manufacture and trafficking of drugs or stimulants (article 188),
Establishing an organization for the purpose of committing a crime (article 220, except for the second, seventh and eighth paragraphs),
To establish an armed organization (article 314) or to provide weapons to these organizations (article 315).
b) Crimes of arms trafficking defined in the Law on Firearms, Knives and Other Tools (article 12).
c) The crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
PRECEDENT COURT DECISIONS
COURT : Criminal Court of First Instance
NUMBER : 2013/461 E ., 2015/468
CRIMES : Abuse of trust, forgery of a private document
CONVICTIONS : Conviction
OPINION ABOUT THE NOTIFICATION : Approval
Judgments against the defendant; 33 of the Law No. 6723. 8 of the Law No. 5320, as amended by Article 8. in accordance with Article 305 of the Criminal Procedure Code No. 1412 (Law No. 1412), which is in force as of the date of the decision. according to the article, it is subject to appeal. As a result of the preliminary examination, the plaintiff was found to be 260 of the Criminal Procedure Code No. 5271 (Law No. 5271), which was in force as of the date of the decision.
310 of the Law No. 1412, in which there is the right and authority to appeal against the provisions that are subject to the provision in accordance with the first paragraph of the article. in accordance with Article 317 of the same Law, in which the request for an appeal is pending for a period of time. it has been determined that there is no situation requiring the rejection of the appeal request in accordance with the article:
LEGAL PROCESS
Istanbul Anatolia 7. Dated 15.09.2015 and 2013/461 Esas, 2015/468 K of the Criminal Court of First Instance. according to the decision No. 5237 of the Turkish Penal Code No. 5237, 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, the defendant should be sentenced to 2 months and 15 days imprisonment and a judicial fine of 20 TL, deprivation of rights and the application of the provisions of the repetition of the crime of abuse of trust in accordance with the provisions of Article 5237,
the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 5237, the second paragraph of Article 523; In accordance with the first paragraph of Article 207, article 62, article 58 and article 53 of Law No. 5237, it is decided to apply the provisions of 10-month imprisonment, deprivation of rights and repetition for the crime of forgery in a private document.
GROUNDS OF OBJECTION
The defendant’s request for appeal consists of his/her will to appeal the judgment.
III. FACTS AND EVENTS
19.07. On 19.07.2013, Izmir Public Security Branch Directorate Auto Theft Bureau Chief was notified that the defendant wanted to take the 06 BY 9432 license plate vehicle rented from the participant …’s rent a car company for 15 days to Izmir and sell it there, the police officers contacted the defendant by phone, said they wanted to buy the vehicle, then met with the defendant at the bus station, stating that the defendant was … and that the vehicle subject to the crime belonged to him, and agreed with the police officers on the sale of the vehicle, he committed the crimes of attempted abuse of trust in this way and forgery of a private document, saying that he signed the ordinary sales agreement between the parties … on Dec.,
In his defense, the defendant stated that he was going to get 5,000 TL from a friend named Hasan …, that he told a friend named Hasan … that he wanted to sell the vehicle he had in order to get this money, and that this person had reported him. To Crime
it has been determined that the original of the subject sales agreement is contained in the file.
It was accepted by the court that the defendant committed the crimes of attempted abuse of trust and forgery in a private document, and the provisions of the conviction subject to appeal were formed.
reason
As stated in the decision of the General Criminal Assembly of the Supreme Court of Appeals dated 01.07.2021 and numbered 2018/18-323 Esas, Decision 2021/330, except for the crimes listed in Article 139 of Law No. 5271, it is possible for law enforcement officers to carry out activities in accordance with the order of the Public prosecutor and within the scope of their general powers and duties, without inciting or encouraging crime, in order to determine the crime and its perpetrator and collect evidence related to the crime, in accordance with articles 160 and its continuation of the same Law.
The officer in this situation is not evaluated as a secret investigator, but as a “judicial law enforcement officer conducting a secret investigation”. In the same decision, it is clearly stated that the evidence obtained by a judicial law enforcement officer conducting a secret investigation for the purpose of committing a crime will be in accordance with the law without the intention of inciting or inciting to commit a crime, but this officer can never act as a provoking element and provoke the perpetrator to commit a crime by creating an intention to commit a crime that did not exist before. Nov.
When the concrete event is evaluated in the light of these explanations; since it is understood that the judicial law enforcement officers conducting the investigation announced that they wanted to buy the vehicle with license plate 06 BY calling the phone number specified in the notification as a customer, arranged a meeting with the defendant and entered into an ordinary sales contract between them, it was understood that judicial law enforcement officers encouraged the defendant to commit a crime by taking provocative actions, and it was found that it was unlawful to decide to convict the defendant instead of acquitting him of the crimes charged, without taking into account that the evidence obtained by illegal means could not be based on the Decrees.
decision
For the reasons explained in the justification section, the defendant’s Istanbul Anadolu 7. Due to the fact that the appeals requests regarding the decision of the Criminal Court of First Instance dated 15.09.2015 and numbered 2013/461 Esas, 2015/468 Decision were considered on the spot, the 321 of the Law numbered 1412. in accordance with the article, the unanimous REJECTION of decisions contrary to the Communiqué,
The case file is sent 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.
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