01 February 2018 Thursday

Orhan Kılıç [PA] (no. 2014/4704, 1 February 2018)

The Facts

At the time of incident, M.E. and Ö.Ö. were a police officer at the juvenile department of a district security directorate.

As alleged by these police officers, the applicant introducing himself as Sertif Kılıç asked them whether they needed narcotic drugs. Thereafter, for the purpose of seizing more narcotic drugs, the police officers went to the applicant’s residence and seized the drugs found there.

The public prosecutor was informed of the incident eighteen hours after the safe-keeping of drugs seized in the applicant’s residence, and an official report was issued with respect thereto. In this report, it is noted that the police officers initially acting as purchasers with the intent of seizing narcotic drugs in large amounts seized precision scales, a large amount of narcotic drugs, cocaine and heroin in various quantities at the applicant’s residence.

Upon the public prosecutor’s instruction, the subsequent procedures were carried out by other security officers.

A criminal case was filed against the applicant who was consequently convicted of trafficking of drugs or psychotropic substances.

In addition, an investigation was initiated against M.E. and Ö.Ö. for bribery as they had settled with the applicant for not taking a legal action against him. At the end of the proceedings, the police officers were convicted of the imputed offence and sentenced.

Besides, another criminal case was brought against these officers for criminal trespass to a residence and depriving a person of his liberty. At the end of the proceedings, the relevant court suspended the pronouncement of the judgment in terms of the imputed offences.

The Applicant’s Allegations

Alleging that he was convicted on the basis of unlawfully obtained evidence, the applicant maintained that his right to a fair trial was breached.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Obtaining evidence through legal means in criminal proceedings is regarded as one of the basic principles of a state of law. Accordingly, it is clearly set out in Article 38 § 6 of the Constitution that findings obtained through illegal means cannot be considered as evidence.

In the present case, it is obvious that the search carried out at the applicant’s residence is unlawful. As a matter of fact, the police officers conducted this search without a judge’s order or public prosecutor’s written instruction. Moreover, the public prosecutor on duty was informed of the search a long time thereafter.

As inferred from the relevant court’s decision, the applicant was convicted on the basis of evidence obtained through an unlawful search. The substantial and decisive evidence forming the basis of the conviction is precision scale and narcotic drugs seized during the search. The other evidence on which the relevant court relied is the statements of the police officers, who carried out the search and were convicted of bribery, as well as the applicant’s confession of his drug addiction. However, the applicant was convicted of drug trafficking. On the other hand, the applicant’s allegations and objections concerning the conducted search were not addressed in the conviction decision.

In principle, it is the trial court’s power to assess evidence available in a certain case. However, it has been observed that, in the present case, use of evidence obtained through an unlawful search as decisive evidence impaired the fairness of the proceedings when considered as a whole. Therefore, it has been concluded that “unlawfulness” conduct of the search constituted a violation of the applicant’s right to a fair trial.

For these reasons, the Constitutional Court found a violation of the right to a fair trial.