APPOINTMENT OF A SECRET INVESTIGATOR
Currently, in the face of increasing and complex organised crimes, there is a belief that classical protection measures will not be sufficient both in reaching the evidence of the crime and in combating organised crimes. For this reason, some secret protection measures are 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 organisations intend to commit. In particular, it is an important protection measure in practice for law enforcement officers to closely monitor the activities of the criminal organisation and collect evidence of crime by placing their own personnel within the criminal organisation. 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 determine the conditions for the application of this measure in the law. As of today, the legal regulation in question is regulated under the article title “appointment of a secret investigator” in Article 139 of the Criminal Procedure Law No. 5271, which is located 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 offence 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 The appointment pursuant to this article shall be decided by the judge (Repealed last sentence: 24/11/2016-6763/27 Art.).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 performed with this identity. In case it is mandatory for the creation and maintenance of the identity, 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.) In case it is mandatory for the investigator to be heard as a witness during the prosecution phase, he/she shall be heard in a private environment 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 be applied by analogy.
(4) The investigator is obliged to conduct all kinds of investigations regarding the organisation whose activities he is assigned to monitor and to collect evidence related to the crimes committed within the framework of the activities of this organisation. (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 offence specified in subparagraph (1) of subparagraph (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 organisation 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 offence shall be destroyed immediately.
(7) The provisions of this Article may only be applied in relation to the offences listed below:
a) Offences under the Turkish Penal Code;
Manufacture and trafficking in narcotic drugs or stimulants regardless of whether committed within the framework of an organisation (Article 188), (1)
Forming an organisation for the purpose of committing an offence (Article 220, except paragraphs two, seven and eight),
Armed organisation (Article 314) or supplying arms to such organisations (Article 315).
b) Offences of arms smuggling as defined in the Law on Firearms, Knives and Other Instruments (Article 12).
c) Offences defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Heritage.
EASON FOR ARTICLE 139 of the Criminal Procedure Code
[1] In the event that there are strong grounds for suspicion that the offence under investigation has been committed and no other evidence can be obtained, public officials may be appointed 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 duty.
[4] The investigator is obliged to carry out all kinds of investigations regarding the organisation 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 organisation.
[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 organisation to which he/she has been 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 offences listed below:
a) Offences under the Turkish Penal Code;
Manufacture and trafficking of drugs or stimulants (Article 188),
Forming an organisation for the purpose of committing an offence (Article 220, except paragraphs two, seven and eight),
Armed organisation (Article 314) or supplying arms to such organisations (Article 315).
b) Offences of arms smuggling as defined in the Law on Firearms, Knives and Other Instruments (Article 12).
c) Offences 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
NOTIFICATION OPINION : Approval
The judgements 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 Code of Criminal Procedure 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 for the offence of breach of trust in accordance with 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 52, Article 58 and Article 53 of the Turkish Penal Code No. 5237 (Law No. 5237), deprivation of rights and application of the provisions of repetition; for the offence 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 judgements.
III. FACTS AND CIRCUMSTANCES
Upon the notification received by Izmir Public Security Branch Directorate Auto Theft Bureau Directorate that the defendant wanted to take the vehicle with the number plate 06 BY 9432, which he rented from the rent a car owned by the participant … for 15 days on 19.07.2013, from Istanbul to Izmir and sell it there, the police officers on duty contacted the defendant by phone, said that they wanted to buy the vehicle, then they met with the defendant at the bus station, the defendant introduced himself as . … and stating that the vehicle subject to the crime belongs to him, he agreed on the sale of the vehicle with the police officers on duty, signed the ordinary sales contract between the parties on behalf of …, and thus committed the crimes of attempting to abuse trust and forgery of private documents.
In his defence, 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 offence was found among the file.
The court accepted that the defendant committed the offences of attempting to abuse trust and forgery of private documents and the conviction provisions subject to appeal were established.
JUSTIFICATION
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. In this case, the officer in this situation is accepted as 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 the 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, and cannot instigate 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 number plate 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 provocative agents and encouraged the defendant to commit a crime, and it was deemed unlawful to decide to convict the defendant instead of acquitting the defendant of the imputed crimes without considering that the evidence obtained by illegal method cannot be taken as a basis for the judgement.
DECISION
For the reasons explained in the justification section, since the defendant’s appeal requests for 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 judgements shall be reversed 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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