Teknik Araçlarla İzleme (CMK m. 140)

The classical protective measures — search, seizure, arrest — prove insufficient for the elucidation of offences committed in organised form. In such cases the possibilities offered by technology must also be drawn upon. Yet since these possibilities, which extend to audio and video recording, would if used without limit result in the violation of private life and even of the secret sphere of life, they must be employed with the utmost care.

The importance of the protective measure of surveillance by technical means emerges all the more clearly in view of the requirements — insistently emphasised in the judgments of the European Court of Human Rights — of a legal basis and of mechanisms of objection. For the person subjected to this measure has no opportunity to object, being unaware of it; and it is equally beyond doubt that the suspect must not know of the decision, since knowledge of it would lead to protective counter-measures and even to steps misdirecting the course of justice.

Weighing these considerations together, the protective measure of surveillance by technical means, regulated in Article 140 of the Code of Criminal Procedure, was chosen as the subject of the study.

Surveillance by technical means may be defined as operations applicable to specified offences and continuing for a specified period, aimed at establishing persons' movements, relations or conversations with others, and carried out by means of various technical devices. Individual observations made to establish the evidence, traces, indicia and products of offences already committed are not accepted as surveillance by technical means.

As the definition shows, the measure is a protective measure used to reach evidence.

After assessing the reasons for the emergence of the institution and its legal nature, the article examines the conditions the Code requires for its application. In the course of these assessments, examples are given from the case-law of the European Court of Human Rights, and the views of Turkish doctrine and the decisions of the Court of Cassation are also presented.

Although, as Article 2 of the Constitution provides, the Republic of Türkiye is a state governed by the rule of law and must accordingly respect the private lives of persons, it is equally certain that another requirement of the rule of law is to secure the safety of persons and of property. When the balance between these two is struck, it is an absolute truth that surveillance by technical means serves the public interest.

The study concludes that surveillance by technical means is today a protective measure that must without fail have its place in the statute. The Code's refusal to permit surveillance in the dwelling — even of a suspect or indeed an accused — and the confinement of this exceptional institution to a limited catalogue of offences are likewise regarded as apt limitations.

Finally, it is observed that because the measure is closely bound up with respect for private life and the right to a fair trial, an erroneous application would not merely entail the liability of the administration in domestic law, but could also become the subject of adjudication at the international level, before the European Court of Human Rights.