What Is the Crime of Unjust Search?
What is the Crime of Unlawful Search?
In this article, I would like to discuss the crime of unlawful search. This crime is regulated in the seventh section of the second chapter, titled "Crimes Against Freedom," under the second book of the Turkish Penal Code, titled "Crimes Against Individuals."
Unlawful search
Article 120- (1) A public official who unlawfully searches a person's person 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 by the crime of unlawful search is the privacy of an individual's private life.
The material elements of the crime of violation of the immunity of residence [Note: the source text uses this term here, though it contextually refers to the crime of unlawful search] consist of a public official unlawfully searching a person's person or belongings. By including the phrase "unlawfully" in the article, it is emphasized that the search is conducted in a manner not permitted by legislation. A crime will not be constituted in cases of search permitted by laws and regulations. For the crime to occur, the public official must search the person's person or belongings by abusing their duty or exceeding their authority.
A search can be unlawful in two cases. The first is that the search is carried out without a valid search warrant specified in the law or without complying with the limitations specified in this warrant. The second is the failure to comply with the legal rules that must be followed during the execution of the search. For example, a search cannot be conducted at night in a residence, workplace, or other closed areas. However, in cases of flagrante delicto or where delay is detrimental, as well as for the purpose of re-arresting a person who has escaped after being caught or detained, or a prisoner or convict, a search may be conducted in these places at night.
Searching a person's person means searching the clothes on the person, their pockets, their handbag, or their suitcase if they are traveling. A body search is carried out to prevent crime, to find and detect traces and evidence of a crime, or to seize certain items, either at a residence, following an arrest procedure, or while law enforcement agencies are exercising their search and scan powers.
Searching belongings is the process of searching any kind of movable or immovable property belonging to an individual. Searches conducted inside a vehicle, inside a residence, or searching 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 person or belongings were unlawfully searched.
The mental element of the crime of violation of the immunity of residence [Note: see previous note] is that 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 carried out according to general provisions. If the public official commits this crime during an administrative duty, the provisions of the Law on the Trial of Civil Servants and Other Public Officials are applied.
I wish you never encounter this type of crime as either a perpetrator or a victim, and I would like to remind you that if you see or hear of this type of crime as an eyewitness, you should definitely report it to law enforcement agencies as a civic duty. Wishing you healthy and peaceful days.