Communication Interception and Monitoring for Preventive Purposes refers to the listening to and recording of individuals’ conversations using telephones or similar telecommunications devices for intelligence purposes.
In cases where a judge’s decision or delay would be detrimental, communications made via telecommunications may be detected and monitored, and signal information may be evaluated and recorded, with the written order of the competent administrative authority. In cases where delay would be detrimental, the written order issued shall be submitted to the competent judge for approval within 24 hours.
The judge shall issue his/her decision within 24 hours at the latest. If the period expires or the judge decides otherwise, the measure shall be lifted. In this case, the recordings of the interception content shall be destroyed within 10 days at the latest; this shall be determined by a written record and the record shall be kept for inspection. If the period of the measure applied expires, the recordings of the interception content shall be destroyed within ten days at the latest.
This situation shall be recorded in a report, which shall be kept for inspection. The decision and written order shall include the identity of the person to whom the measure will be applied, the type of communication device, the telephone numbers used or numbers that can be identified by the code that enables the identification of the communication connection, as well as the type, scope, and duration of the measure and the reasons requiring the application of the measure.
Judicial wiretapping is the listening to and recording of conversations between individuals using telephones or similar telecommunications devices for the purpose of obtaining evidence during the investigation or prosecution of a crime.
The possibility of interference with a person’s freedom of communication is limited by the fact that communication surveillance is envisaged as a secondary measure following the general collection of evidence. This measure is subject to the precondition that a criminal investigation and prosecution are being conducted for a crime and that the suspect’s or defendant’s communications are being monitored in this context. If there are strong grounds for suspicion, if there is no possibility of obtaining evidence by other means, and if the act of listening to and recording telephone conversations is listed as one of the crimes listed in Article 135/6 of the Criminal Procedure Code, the judge decides on the listening and communication detection.
The judge’s decision specifies the type of crime committed, the identity of the person to whom the measure will be applied, the code enabling the identification of the communication link, the nature, content, and duration of the measure. In cases where delay would be detrimental, the prosecutor may issue a wiretapping and interception order. The chief prosecutor immediately submits the decision to the judge for approval, and the judge issues a decision within 24 hours at the latest. If the time limit expires or the judge decides otherwise, the measure is immediately lifted by the chief prosecutor.
If the judge finds it inappropriate and does not approve the prosecutor’s decision, the prosecutor’s office may appeal this decision. In the event that the records related to the interception and monitoring are destroyed, the Chief Prosecutor’s Office shall provide the person concerned with written information on the reason, scope, duration, and outcome of the measure within 15 days at the latest after the completion of the investigation phase. A measure decision may be issued for a maximum period of 3 months. The period may be extended once and may last for a total of 6 months.
Cases Where Telephone Interception Violates Freedom of Communication
Except for the reasons stated in the decision issued on the basis of one or more grounds related to national security, public order, crime prevention, public health or morals, or the protection of the rights and freedoms of others; in cases where delay would be detrimental for these reasons, with a written order from the authority empowered by law; in cases of violation and obstruction of the confidentiality of communications;
public authorities should not interfere with freedom of communication. Freedom of communication should be restricted by public authorities only for the purposes of national security, public safety, the material welfare of the country, the protection of life and order, the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others.
Freedom of communication is regulated as a legal right protected under Article 132 of the Turkish Commercial Code. The situations defined as violations in this article are as follows: –
Violation of the confidentiality of communication between individuals or violation of this confidentiality through the recording of communication content.
-Decriminalization of illegal communication content between individuals.
Disclosure of the content of communications made with the other party to the public without their consent.
-Announcement of the content of agreements made between individuals through the press and media.
Wiretapping from the Defense Perspective
Due to the defense’s immunity and the suspect and defendant’s right to communicate and correspond without surveillance and monitoring (CMK Article 154), the surveillance of the suspect and communication with the defendant is prohibited.In this case, the defense counsel’s office, residence, and telecommunications devices at their place of residence may not be monitored. There is no prohibition on wiretapping telecommunications devices located outside these places, but there is no prohibition on wiretapping mobile phones. However, since the defense attorney also has the right to refuse to testify, the communication between the suspect/defendant and the defense attorney will not be recorded pursuant to CMK 135/2, even though there is no prohibition.