Özet:

Investigating and evaluating the material facts in accordance with the law is of great importance for the proper conduct of the trial and the administration of justice. The article discusses in detail the concept of unlawful search within the framework of judicial decisions according to Turkish law of criminal procedure. The term "unlawful search" refers to judicial and preventive searches that run counter to the stipulations of international and national legislations. The search process is a protective measure in criminal procedure law. The search process, being a protective measure in criminal procedure law, inherently encroaches upon the fundamental rights and freedoms of citizens under the suspicion of a committed crime. The state's obligation to ensure public security and order to protect the fundamental rights and freedoms of citizens makes it essential to implement the search process. One of the important elements in criminal procedure is whether the procedures carried out to obtain criminal evidence comply with the law. The fundamental characterization distinguishing between preventive search and judicial search, as well as the procedural provisions to which it is subject, hinges on whether the search process aims to prevent the commission of a crime or to find evidence of a crime already committed. The definition of the search, its legal nature, its types and the search process are decided according to the degree of suspicion. The concept of suspicion encompasses simple suspicion, reasonable suspicion, sufficient suspicion, and strong suspicion. Simple suspicion is the lowest degree of suspicion. It appears as an assessment of a prosecutable act. It is also called initial suspicion. Reasonable suspicion is the suspicion experienced in response to concrete events based on the course of life. In order for the suspicion to be considered "reasonable", there must be information or documents that can convince an impartial observer that the person may have committed a crime. Sufficient suspicion can be defined as the degree of suspicion required to proceed to the prosecution stage by issuing an indictment against the person under investigation. Strong suspicion is the intensity of suspicion required to implement severe protective measures such as arrest, for the person under investigation. The concept of reasonable suspicion is an important criterion in events subject to judicial search. In addition to legal legislation, judicial decisions pertaining to past events and prosecutions play a guiding role in shaping the execution of search activities by public institutions wielding public power. Judicial decisions help us understand the purpose of the legislator by elucidating certain concepts by the application of national and international legislation to concrete events, and also verify whether the decision made is in accordance with the law. Errors made in handling concrete events undergo legal scrutiny, resulting in legal and criminal sanctions. Situations in which a search may be deemed unlawful through judicial decisions, situations in which a search warrant must be issued are discussed and legal and criminal consequences are stated. Criminal consequences arise if public officials misuse their authority to ensure public order and security or if immunity of domicile is violated. The legislature has introduced some limitations regarding the place and time of search. Even if evidence obtained from an improperly executed search strongly suggests the person in question committed a crime, it cannot serve as a legal basis due to the illegality of the search.

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