Events
In the study carried out within the scope of the investigation carried out upon a tip by the Police Department teams, the UNHCR was handed over drugs to the informant. has been detained. Upon this, when he went to the house of the U.N.D. to make a search, B.B. and the applicant was found at home. During the search, various amounts of narcotic substances and precision scales, bags used in drug packaging and some money were seized.
During the search made on the applicant, his mobile phone and a SIM card inserted in this phone were seized and kept under record. Upon the request of the Office of the Chief Public Prosecutor (General Prosecutor’s Office), the seizure was approved by the decision of the Criminal Judgeship of Peace and allowed the examination of the mobile phone and SIM card. There is no information in the individual application file about whether the applicant’s mobile phone was examined or not, and if so, what the result was.
The 13th High Criminal Court (Court) concluded that he had committed the crime of possession of drugs, and sentenced the applicant to 8 months, deferred the announcement of the sentence, and also ordered the confiscation of the criminal goods registered in judicial custody in accordance with Article 54 of the Turkish Penal Code No. 5237. The mobile phone of the applicant, which was registered in judicial custody, was also confiscated. No justification was given in the decision regarding the clause regarding the confiscation of the applicant’s mobile phone and SIM card. The applicant’s objection to this decision was rejected by the 14th High Criminal Court.
allegations
The applicant claimed that his property right was violated due to the confiscation of his mobile phone, which could not be determined to have been used in the crime.
Court’s Evaluation
The regulation of rights and freedoms, the interventions and restrictions to be made on them by law is one of the most important elements of the democratic state of law, which prevents arbitrary interference with these rights and freedoms and ensures legal security.
In the present case, the applicant’s mobile phone was confiscated within the scope of the criminal investigation carried out against the applicant, and then it was decided to confiscate the mobile phone. Article 54 of Law No. 5237 has been cited as the legal basis for the confiscation decision. In the first sentence of paragraph (1) of the aforementioned article, it is stated that -provided that they do not belong to bona fide third parties- the goods used in the commission of an intentional crime or allocated to the commission of the crime or consisting of the crime shall be confiscated.
However, it is not sufficient to have a formal legal basis for the interference, and the connection of the concrete case with this law must be demonstrated based on an acceptable reasoning. The applicant’s mobile phone was confiscated, and with the decision of the Criminal Judge of Peace, it was allowed to examine the applicant’s mobile phone. However, there is no explanation in the Court’s decision regarding the examination and its results.
At any stage of the investigation, no assessment was made of the applicant’s mobile phone being used in the crime, and it was not claimed that the applicant used this mobile phone to obtain the drugs he needed. In this case, since it is not shown in the court decision that the applicant’s mobile phone was used to commit the crime of possession of drugs, it cannot be said that the concrete case is related to the law. In this respect, it was concluded that the interference with the applicant’s property right was devoid of legal basis.
The Constitutional Court decided that the right to property had been violated for the reasons explained.