What Is the Crime of Unjust Search?
In this article, I would like to discuss the crime of unlawful search. This crime is regulated in the seventh chapter of the second part, titled "Crimes Against Freedom," of the second book of the Turkish Penal Code.
Unlawful search
Article 120- (1) A public official who unlawfully searches a person's body or belongings shall be sentenced to imprisonment for a term of three months to one year.
This provision constitutes the sanction for the violation of the privacy of private life, which is protected by international documents (Article 8/1 of the European Convention on Human Rights) and domestic legal norms (Article 20 of the 1982 Constitution).
The legal value protected in the crime of unlawful search is the privacy of the individual's private life.
The material elements of the crime of violating the immunity of residence consist of a public official searching a person's body or belongings unlawfully. By including the phrase "unlawfully" in the article, the fact that the search is carried out in a manner not permitted by legislation is emphasized. No crime will be committed in cases of searches permitted by laws and regulations. For the crime to occur, the public official must search the person's body or belongings by abusing their duty or exceeding their authority.
A search can be unlawful in two cases. First, if the search is conducted without a valid search warrant specified by law or without adhering to the limitations specified in this warrant. Second, if the legal rules regarding the execution of the search, which must be followed during the search, are not complied with. For example, searches cannot be performed at night in residences, workplaces, or other enclosed spaces. However, in cases of flagrante delicto or where delay is detrimental, or for the purpose of re-capturing a person who has escaped after being caught or detained, or a detainee or convict, night searches can be conducted in these places.
Searching a person's body means searching the clothes on the person, their pockets, their handbag, or their suitcase if they are traveling. Body searches are carried out for purposes such as preventing a crime, finding and detecting traces and evidence of a crime, or seizing certain items, either at a residence, following an arrest, or while law enforcement officers are exercising their search and scan powers.
Searching belongings refers to the search process performed on all kinds of movable or immovable property belonging to an individual. Searches conducted inside a vehicle, inside a residence, or the searching of a person's suitcases fall within this scope.
The perpetrator of the crime can only be a public official. The victim is the person whose body or belongings are searched unlawfully.
The moral elements of the crime of violating the immunity of residence; this crime can be committed intentionally.
The investigation procedure for the crime; if the crime is committed during the execution of a judicial duty, the prosecution is conducted according to general provisions. If a public official commits this crime during an administrative duty, the provisions of the Law on the Prosecution of Civil Servants and Other Public Officials are applied.
I hope you never encounter the type of crime I have tried to summarize above, neither as a perpetrator nor as a victim, and I would like to remind you that if you see or hear about this type of crime as an eyewitness, you must report it to law enforcement forces as a civic duty. Wishing you healthy and peaceful days.