When Are Search and Seizure Unlawful? Irregular Searches, Exclusionary Rules of Evidence and Defence Rights

The constitutional basis for the lawfulness of search and seizure

A search is an interference with the inviolability of the home and private life

The search measure is assessed mainly within the scope of the safeguards of respect for private life in Article 20 and the inviolability of the home in Article 21 of the Constitution. Seizure, depending on the nature of the specific item, restricts the power of disposal over property and possession; Article 35 of the Constitution also comes into play. Taking possession of a computer or phone may at the same time constitute an interference with communications, personal data and professional secrecy. Article 8 of the European Convention on Human Rights (ECHR) and Article 1 of Protocol No. 1 complement this protection at international level.

Legality, concrete reasoning and proportionality are required together

In search and seizure, which restrict fundamental rights, a statutory basis, a competent deciding authority, concrete suspicion or the conditions for the measure, a legitimate aim, necessity, the scope of the interference and effective review are complementary conditions. The fact that law enforcement found evidence of an offence at the end of the act cannot replace the authority and conditions that must have existed before the act began. The justification for exceptional search powers must be shown not by an abstract statement of "urgency" but by the timeline of events and a concrete danger.

Search, seizure and confiscation are different legal institutions

A search is an inquiry aimed at finding evidence or a wanted person on a person or in a place. Taking into safekeeping is the protection regulated by Article 123 CMK. Seizure is the restriction of actual or legal disposal over an item where it is not handed over or under the other conditions specified by law. Confiscation, by contrast, is a separate security measure under Articles 54–55 of the Turkish Penal Code (TCK). The lawfulness of a search does not automatically mean that the subsequent seizure and safekeeping are also lawful.

The limits of judicial searches, preventive searches, stopping and pat-down checks

A judicial search is based on Articles 116–117 CMK

For a search to be carried out on the person, belongings, home, workplace or other places belonging to a suspect or defendant, there must be reasonable suspicion that he or she may be apprehended or that evidence of an offence may be obtained (Article 116 CMK). For searches of persons other than the suspect or defendant, the additional conditions relating to the incident and the connection under Article 117 CMK are assessed. The opening of an investigation does not constitute a general permission to search unrelated third parties anywhere.

A preventive search must not be used in place of a judicial search

A preventive search is a separate power for the purposes of public order and security. A judicial search, by contrast, is directed at investigating an offence and obtaining evidence. The power under the Police Duties and Powers Law No. 2559 (PVSK) and the Regulation on Judicial and Preventive Searches cannot take a search for evidence relating to a particular offence outside the special safeguards of the CMK. What matters is not the name given to the act in the record, but for what purpose and how it was actually carried out.

Safeguards required in the transition from a preventive search to a judicial search

If concrete suspicion relating to a particular offence arises during a preventive check, the legal nature of any further inquiry carried out thereafter is determined anew. Law enforcement noticing an item in plain view is not the same as searching for evidence by opening a closed bag or plastic bag. This distinction was also discussed on the facts of the case in the decision of the Plenary Criminal Chambers of the Court of Cassation (Yargıtay CGK) dated 19.11.2025, E.2023/597, K.2025/492. The general reasoning of the decision concerning oral orders is a separate legal issue; it is not elaborated in this article.

The power to stop is not an unlimited power to search

Under Article 4/A PVSK, stopping a person and asking for identification must be distinguished from searching closed belongings or the hidden compartments of a vehicle for evidence. The fact that the stop was lawful does not show that every search carried out after the stop was lawful. The duration of the act, the reason for the stop, the aim of the check and the moment at which the search began must be established.

A pat-down check cannot be turned into a judicial search of the person

A limited external check carried out for the officer’s safety is not the same as examining a person’s pockets, closed belongings or phone in order to obtain evidence. If a search for evidence was carried out under the name of a security measure, the basis and scope of the act and whether a search decision was required are examined.

On what grounds can a search decision be unlawful?

Absence of reasonable suspicion and abstract reasoning

Reasonable suspicion under Article 116 CMK cannot be constructed retrospectively on the basis of the item found afterwards. The content of the tip-off, concrete observations and the link between the person or place and the offence must be checked against the records predating the search. The person’s past, appearance or an unreasoned opinion of law enforcement does not alone justify every search.

Absence of a decision by the competent authority or of a statutory written order

Under Article 119 CMK, the principal authority to order a search lies with the judge. Where delay would be prejudicial, the exceptional written-order regime laid down by law applies. For homes, workplaces and closed areas not open to the public, a written order of the law enforcement superior is not sufficient; a judge’s decision or, under the statutory conditions, a written order of the public prosecutor (Cumhuriyet savcısı) is required. The case-law debate between the general investigative oral order and the special written-form requirement is the subject of a separate article; it is not argued here that an oral order is definitively valid or definitively invalid in all cases.

Exceeding the decision as to place, person, items or duration

Under Article 119(2) CMK, the decision or order must clearly state the act giving rise to the search, the person, home/other place or items to be searched and the period for which the decision is valid. A decision relating to a specific address does not confer a general authority to search another address not mentioned in the decision. The floor, room, storage unit or vehicle in which, and the hours during which, the search was actually carried out must be compared with the scope of the decision.

Misapplication of the prohibition of night-time searches and its exceptions

Article 118 CMK, as a rule, prohibits night-time searches of homes, workplaces and other closed places; it provides exceptions for in flagrante delicto cases, cases where delay would be prejudicial and acts aimed at recapture specified by law. The concept of night-time must be determined for the specific place and date by the relevant statutory definition. The start and end times in the record and the justification for the exception must be checked.

Unlawfulness in the execution of the search: Articles 119–120 CMK

When are two search witnesses required?

Under Article 119(4) CMK, in a search carried out in a home, workplace or other closed place while the public prosecutor is not present, two persons from the council of elders (ihtiyar heyeti) of that place or from among the neighbours must be present. Their role is to provide a safeguard by which the execution of the search can be observed from outside. The presence of a search witness’s name and signature in the record does not in itself prove that he or she actually took part in the search.

No search witness at all

The decision of the Yargıtay CGK of 18.06.2025, E.2024/381, K.2025/259, expressly addresses the earlier line of case law that treats a search carried out without any search witness as unlawful in its execution. Where there is no search witness at all, the question of whether the evidence seized in the search can be used as a basis for the judgment carries particular weight.

Only one search witness

The same decision does not treat the consequence of the presence of only one person as automatic and the same in every case. The defence’s concrete objections to the authenticity of the evidence, where and how the item was found, who else observed the search, whether the evidence is sole or decisive, and the reliability of the act are assessed together. Reading the decision as a general permission legitimising a one-person shortfall is no more correct than regarding all searches with a single witness as indisputably void.

If the muhtar signed the record after the search

In the Constitutional Court’s decision in Mehmet Cengiz and Rıdvan Cengiz, Application No. 2019/21704, 20.09.2023, it emerged from witness testimony that the neighbourhood head (muhtar) had not taken part in the search but had nevertheless signed the record brought to him afterwards. The Court found a violation of the rights to the inviolability of the home and respect for private life and of the right to a fair trial on account of unlawful evidence being the decisive basis for the conviction. This decision shows that a signature on the record and actual presence are different things.

Participation of the owner, possessor or representative of the place searched

Article 120(1) CMK provides that the owner of the place searched or the possessor of the item may be present during the search; if he or she is absent, the person specified by law must be called to be present. The presence of these persons is not the same as the safeguard of two search witnesses under Article 119(4) CMK. The presence of one does not automatically make up for the absence of the other.

Preventing a lawyer from being present at the search

Under Article 120(3) CMK, a person’s lawyer cannot be prevented from being present at the search. When the lawyer arrived, which part of the premises he or she was not allowed into, whether he or she was actually prevented from observing the interference and whether his or her objections were entered in the record must be made concrete. At the same time, it should be borne in mind that there is no general rule that every search must necessarily be postponed to wait for the lawyer’s arrival.

Provision of documents at the end of the search and recording of items: Article 121 CMK

Which documents can the person searched request?

Article 121(1) CMK provides that the person concerned is to be given, upon request, a document stating on which legal basis and in connection with which act the search was carried out, together with a record containing a list of the items seized or taken into protection. If nothing justifying the suspicion was obtained, this must also be documented. The condition upon request here must not be confused with the other obligations to draw up records.

Why are a complete inventory of the items and sealing important?

Article 121(2)–(3) CMK regulates the recording of views and claims regarding ownership, the drawing up of a complete inventory of the items taken into protection or seized, and the sealing or marking of the items with an official seal. Where there is a dispute, the serial number, distinguishing features, quantity, place where found, package or seal number and time of handover must each be compared. A discrepancy between the list and the custody record must be investigated with regard to the way in which the item was obtained and preserved.

What record should be requested if the search finds nothing?

Failure to record the result where nothing justifying the suspicion was found in the search is important with regard to claims that may arise later. The right of the person concerned to request a document under Article 121 CMK should be exercised expressly; the documents, footage and other records provided should be kept.

The limits of the power to examine documents: Article 122 CMK

Law enforcement gaining access to a document does not give it unlimited power to examine its content

Under Article 122(1) CMK, the power to examine the documents or papers of the person subjected to the search belongs to the public prosecutor and the judge. This provision draws the line between coming across a document and the examination of its content by the competent authority. Provisions of special legislation and the different examination regimes for digital data must also be taken into account.

The possessor’s safeguard of sealing and presence

Under Article 122(2) CMK, the possessor of the documents or papers or his or her representative may affix his or her own seal or signature. For the removal of the seal and presence at the examination stage, the possessor, representative, defence counsel or attorney is summoned; if the summons is not complied with, the act provided for by law is carried out. These rights are important so that it can be checked that the content has not been altered afterwards and what the scope of the examination was.

Return of documents unrelated to the offence

Article 122(3) CMK provides for the return to the person concerned of documents that, at the end of the examination, are found to be unrelated to the offence under investigation or prosecution. For this reason, keeping all unrelated commercial papers, family correspondence or professional documents for an indefinite period in order to find a single document must be separately justified.

The seizure and return regime for items found in a search

Safekeeping with consent and coercive seizure

The rules on safekeeping and handover in Articles 123–124 CMK are assessed together with the general seizure procedure. The fact that an item was handed over with consent does not automatically cure an unlawful search preceding it. Writing in the record that consent was given to the handover of the item does not automatically end a dispute concerning genuine will and the scope of the handover.

Time limits for judicial approval in general seizure

Under Article 127(3) CMK, a general seizure carried out without a judge’s decision is submitted for the approval of the competent judge within 24 hours; if the judge does not announce a decision within 48 hours of the seizure, the seizure is automatically lifted. The 48 hours do not start again at the end of the 24 hours. These time limits cannot be applied to all special types of seizure without any distinction.

Does lawful subsequent safekeeping cure an unlawful initial search?

If an item was first found in an unlawful search, the subsequent opening of a proper custody record or the ordering of an examination does not retrospectively make the way in which it was first obtained lawful. However, whether the item was obtained by another, independent and lawful route is examined separately. The lawfulness of the initial search, the subsequent safekeeping and the probative value of the evidence must be kept apart.

Article 138 CMK: Evidence obtained by chance

Where, in a lawfully conducted search or seizure, evidence relating to another offence outside the offence under investigation comes to light, the scope of Article 138 CMK and the safeguards of notification to the public prosecutor are assessed. The character of "obtained by chance" does not automatically legitimise an unlawful initial search.

Protection of digital records and lawyers’ documents

Phones, computers and copying

Physically taking possession of a device and examining all of the data on it are not the same act. The special conditions of Article 134 CMK, their applicability to the device and data type concerned, the examination decision, the forensic copy, authorised access, storage conditions and return must be investigated separately. A technical hash value assists in examining the integrity of the record; it does not replace a statutory search decision.

By the Constitutional Court’s decision of 12.02.2026, E.2023/128, K.2026/36, the entry into force of the annulment of Article 134 CMK was deferred to 25.02.2027. As of 11.11.2026, this annulment has not yet taken effect; if new legislation is enacted before the date on which the annulment takes effect, the current position must be checked again.

Search of a law office and client confidentiality

Article 130 CMK introduces special safeguards for searches of law offices, such as a court decision, supervision by the public prosecutor and the presence of the president of the bar association or his or her representative. For documents belonging to the professional relationship between client and lawyer, the procedure of sealing and examination by a judge also applies. This regime aims to prevent the professional secrets of third parties from being examined without limit in unrelated investigations.

The exclusionary rule for unlawful evidence: Article 38(6) of the Constitution and Articles 206, 217 and 230 CMK

Establishing unlawfulness and probative force are separate matters

Article 38(6) of the Constitution provides that findings obtained in violation of the law cannot be accepted as evidence. Article 206(2)(a) CMK provides for the rejection of evidence obtained in violation of the law, Article 217(2) for the proof of the offence by lawfully obtained evidence, and Article 230(1)(b) for unlawful evidence to be indicated separately in the reasoned judgment. These norms prevent the unlawfulness of the way in which evidence was obtained from being disregarded on the claim that the evidence may be true.

Evidence may be lawful but unreliable

A video recording or a witness account may have been obtained lawfully; but its accuracy, attribution or probative force may remain disputed. Conversely, evidence that provides strong information about the material event cannot form the basis of the judgment because it was obtained by unlawful means. The court must address the lawfulness of the way the evidence was obtained and the force of the evidence to prove the elements of the offence separately.

Bringing unlawful evidence into the file through subsequent examinations

The examination of an unlawfully obtained item by a court-appointed expert or its reading out at the hearing does not automatically cure the unlawfulness of the initial interference. Whether subsequent findings have a source independent of the initial unlawful act must be determined concretely for each piece of evidence; it is not correct to transpose a doctrine used in foreign law into Turkish law without exception.

The Yargıtay CGK decision of 18.06.2025: Review of search witnesses

The facts of the case and the dispute

In its decision Plenary Criminal Chambers of the Court of Cassation, 18.06.2025, E.2024/381, K.2025/259, the Court examined, in a search of business premises concerning the offence of trademark infringement, the failure to have search witnesses present and the effect on the judgment of a single counterfeit product found in the search. The existence of a search decision did not remove the problem of whether the execution was carried out in accordance with Article 119(4) CMK.

The assessment of no witness at all versus a single witness

The Plenary Criminal Chambers, also referring to its earlier decisions, maintained its approach of unlawfulness in respect of the execution of searches carried out without any search witness; with regard to searches with a single search witness, it stated that concrete objections directed at the authenticity and reliability of the evidence, the other observers and the role of the evidence in the conviction must be examined together. Assessing both situations with the same reasoning diminishes the meaning of the decision.

The effect of the decision on the judgment

In the specific case, it was considered that, apart from the item found as a result of the search, there was no sufficient evidence to prove the elements of the offence, and the trial court’s judgment of acquittal, delivered in adherence to its earlier judgment (direnme kararı), was upheld. This decision shows that the defence must discuss not only the procedural shortcoming but also, together, the conditions under which the evidence was found and the sufficiency of the other lawful evidence.

Constitutional Court case law: Search procedure and fair trial

Yaşar Yılmaz: Decisive evidence obtained without search witnesses

In its decision Constitutional Court, Yaşar Yılmaz, Application No. 2013/6183, 19.11.2014, the Court emphasised that the use of evidence obtained through an act carried out without search witnesses as the sole and decisive evidence impairs the fairness of the proceedings. This decision was also influential in the development of subsequent Court of Cassation case law.

Orhan Kılıç: The effect of an unlawful home search on the judgment

In its decision Plenary Assembly of the Constitutional Court, Orhan Kılıç, Application No. 2014/4704, 01.02.2018, the Court concluded that the right to a fair trial had been violated because the narcotic substances obtained through an unlawful interference with the home, and the records relating to them, were the essential basis of the conviction. The fact that law enforcement notified the prosecutor’s office long after the initial act and that the incident involved other legal problems are also important in the context of the file. The decision shows that the sole or decisive role of the evidence in the conviction must be examined.

Mehmet Cengiz and Rıdvan Cengiz: A search record signed afterwards

In its decision Second Section of the Constitutional Court, Application No. 2019/21704, 20.09.2023, it emerged that the muhtar had not been in the home during the search but had signed the record after the search. The Court found a violation of the rights to respect for private life and the inviolability of the home, as well as of the right to a fair trial because unlawfully obtained evidence had been made the decisive basis of the conviction. The important conclusion is this: saying there is a signature is not the same as saying the search witness was actually present.

ECtHR case law: Effective review, the scope of the search and professional secrecy

Brazzi v. Italy: Absence of effective subsequent judicial review

In its judgment ECtHR, Brazzi v. Italy, Application No. 57278/11, 27.09.2018, the Court assessed the impossibility of subjecting a home search carried out in the context of a tax investigation to effective legal review in the light of the safeguards of Article 8 ECHR and found a violation. The fact that no item was seized during the search did not mean that there was no interference with the right to respect for the home and private life. The search itself is an independent interference with the right. The judgment also found it unnecessary to carry out a separate examination of a violation under Article 13 ECHR.

Kırdök and Others v. Turkey: Lawyers’ unrelated digital data

In its judgment ECtHR, Kırdök and Others v. Turkey, Application No. 14704/12, 03.12.2019, a violation of Article 8 ECHR was found because digital data of lawyers who were not the targets of the investigation, held on a shared computer and a USB device in the same office, had been copied, information covered by professional confidentiality had not been adequately separated and the data had not been returned or destroyed. The presence of a bar representative during the search and the sealing of the data did not in themselves remedy the lack of special safeguards for professional secrecy.

The ECtHR’s fairness review differs from the Turkish exclusionary rule

Under Article 6 ECHR, the ECtHR does not take the place of national courts’ decisions on the admission of evidence; it essentially assesses the fairness of the proceedings as a whole, the opportunities to challenge and the reliability of the evidence. By contrast, Article 38(6) of the Constitution and Article 217(2) CMK are norms that a Turkish criminal court is directly obliged to apply with regard to unlawful evidence. The ECtHR’s general fairness standard should not be used to narrow the express exclusionary rule in domestic law.

The effect of unlawful evidence on conviction, acquittal and the reasoned judgment

Where the evidence is sole or decisive

If the sole basis of the conviction is unlawful evidence, it is assessed whether any evidential basis remains once that evidence is excluded. The existence of several pieces of evidence is not in itself sufficient either; the decisive role of the unlawful evidence and the independent probative force of the other evidence must be set out. The court’s reasoning must show which lawful evidence proves which element of the offence.

Exclusion of unlawful evidence is not automatic acquittal

The fact that a piece of evidence cannot form the basis of the judgment does not automatically require that the defendant be acquitted. If the remaining lawful evidence is sufficient to prove the act charged, the court assesses it. If it is not sufficient, acquittal under Article 223 CMK comes into consideration. Exclusionary rules of evidence do not prevent discussion of the remaining part of the proof.

Responding to the defence’s objection in the reasoning

An objection concerning the way the evidence was obtained that affects the judgment cannot be dismissed merely with the explanation "there is a record" or "the evidence was seized". Under Article 230 CMK, the court must show in a reviewable manner the lawfulness of the evidence, the evidence rejected and the reasons for the evidence relied on in the judgment.

How is a claim of unlawful search investigated at the hearing?

Comparing the decision, the record and time data

The search decision or order, the prosecutor’s office’s records of acts, the record of the start and end of the search, camera footage, crime scene records, the signatures of the possessor and witnesses, and the times of handover into custody must be examined together. Relying on a single record without establishing the chronology of the act may render important contradictions invisible.

Hearing the search witnesses and law enforcement officers

If it is disputed whether the witness was actually present, whether he or she observed the search from beginning to end and whether he or she saw the moment the item was found, a request to hear witnesses must be made concrete. Whether statements from law enforcement officers are needed must be determined according to the concrete contradiction between the records and the other evidence. An automatic request to hear witnesses is not mandatory in every file.

Effective challenge to the authenticity and reliability of the evidence

Where the item was found, by whom it was identified, the packaging and sealing, the custody handover records and, where applicable, the technical examination method must be investigated. The defence must show clearly which information is contradictory and why, and what consequence this has for proving the offence charged.

Raising unlawful evidence in regional appeal and appeal on points of law

Making the dispute concrete in an application for regional appeal

In a regional appeal (istinaf) under Article 272 et seq. CMK, it must be explained together which statutory provision the unlawful act violated, which evidence it affected, how the evidence was used in the judgment and whether the other lawful evidence is sufficient. The statement "the search is unlawful" alone may not be enough to reveal the concrete error of proof in the decision.

Article 289(1)(i) CMK: A judgment based on unlawful evidence

Article 289(1)(i) CMK regulates a judgment being based on evidence obtained by unlawful methods as a case of absolute unlawfulness (hukuka kesin aykırılık). For this provision, it must be shown not only that there was a shortcoming in the search, but that the judgment is based on unlawfully obtained evidence.

Building the grounds of appeal

Reviewable grounds follow this sequence: specific act → provision violated → unlawfully obtained evidence → use of the evidence in the reasoned judgment → outcome of the appeal. This is more effective than an abstract allegation of irregularity.

Article 289(1)(g) CMK and the reasoned judgment

A judgment that does not contain the reasoning required by Article 230 CMK may separately constitute a case of absolute unlawfulness under Article 289(1)(g) CMK. However, the rejection of every objection does not in itself lead to this result; it must be examined whether there is sufficient reasoning as to why the decisive defence argument was not accepted.

Objection, return of items and application to the Constitutional Court

Time limit and authority for an objection to the decision

Under Article 268 CMK, the general time limit for an objection is two weeks from learning of the decision, unless there is a special provision. However, it cannot be assumed that every actual search act is challenged by the same route. Whether the act was based on a decision, any special provision of the law and the dates of service and learning must be investigated separately. Under Article 127(4) CMK, a person whose item in his or her possession has been seized may at any time request a decision from the judge; this must not be confused with the general time limit for an objection.

It is not always necessary to wait for the judgment to become final for the return of an item

Under Article 131 CMK, the return of an item that no longer needs to be kept or that is found not to be subject to confiscation may be considered. If there is no special reason preventing the return in kind of the seized item, a request for return may also be made while the proceedings are ongoing. In the specific case, it must be explained whether the need for the evidence has ended and what the rights of third parties are.

Individual application to the Constitutional Court

After the effective ordinary remedies that must be exhausted have been used, an individual application may come into consideration in respect of a violation of constitutional rights. The general time limit for an individual application is 30 days; its starting point, learning of the final decision and the specific application procedure must be checked separately. The AYM is not the automatic first authority for every ongoing seizure.

Compensation for disproportionate search and unlawful seizure

Article 141(1)(i) CMK: A search decision executed disproportionately

Article 141(1)(i) CMK allows a person in respect of whom a search decision was executed disproportionately to claim compensation for pecuniary and non-pecuniary damage under the statutory conditions. For example, allegations concerning unnecessary physical destruction unrelated to the aim of the search, the manner of the search or the severity of the interference should be assessed under this heading. Not every procedural shortcoming automatically gives rise to compensation, nor in the same amount; damage, unlawfulness and the causal link must be established.

Article 141(1)(j) CMK: Grounds for compensation relating to seizure

This sub-paragraph concerns seizure without the conditions being met, failure to take the necessary measures to protect the item, use for purposes other than the intended one, or failure to return the item in time. The nature and amount of the item’s loss in value, safekeeping costs or other provable damage must be determined separately.

Article 142 CMK: Competent authority, time limit and content of the application

Article 142(1) CMK provides for a claim for compensation within three months of service on the person concerned of the notice that the decisions or judgments have become final, and in any event within one year of their becoming final. The starting point of the time limit and the preconditions of the claim must be reviewed according to the specific case and the legal nature of the claim. The general competent authority regulated in Article 142(2) CMK is the High Criminal Court (ağır ceza mahkemesi). Following Law No. 7499, the Compensation Commission (Tazminat Komisyonu) procedure applies to claims under Article 141(1)(e), (f) and (l) CMK; sub-paragraphs (i) and (j) are not within this transferred group.

The application must set out concretely the act, the damage, the amount of damage, the causal link and the supporting documents. At which stage of the proceedings which claim may be raised must also be checked, together with any specific case law or transitional provision.

Unlawful search and the criminal liability of public officials

Article 120 TCK: Unlawful search

Article 120 TCK regulates the offence of unlawful search (haksız arama) concerning a public official who unlawfully searches a person’s body or belongings. However, the existence of a procedural shortcoming in criminal proceedings does not mean that the public official concerned has automatically committed this offence. The statutory elements, intent, duty and the concrete circumstances of the act must be assessed separately. No automatic conclusion can be drawn as regards other offences or disciplinary liability either.

Practical examples: Correctly identifying the specific legal problem

Example: A storage unit not mentioned in the search decision was searched

The address and scope of the decision are compared with the physical and legal position of the storage unit; whether there was an independent lawful basis for the search is investigated. The way in which the item from the storage unit was obtained and the subsequent custody record are addressed separately.

Example: The neighbours signed the record after the search had ended

The times at which the neighbours arrived, camera footage and whether they actually witnessed the events are investigated. The Mehmet Cengiz and Rıdvan Cengiz decision and the CGK E.2024/381, K.2025/259 decision are used together in respect of different legal standards.

Example: The content of a device found in the search was later scanned

The decision to take the device, the separate legal basis for examining its content, the copying method and the protection of unrelated data are investigated. Physical seizure is not accepted as an unlimited power to examine all digital content.

Example: An unlawfully obtained item is the sole evidence for the conviction

The link between the unlawfulness and the basis of the judgment is established. Once the evidence has been excluded, whether the other lawful evidence proves the elements of the offence is discussed within the framework of Articles 223, 217 and 289 CMK.

Search and seizure lawfulness checklist for the defence

This table aims not at raising every request in every case, but at selecting the issues that genuinely arise in the file and affect the judgment. Objections that are not based on concrete facts and have no statutory counterpart or evidential effect may weaken the defence.

Frequently Asked Questions

If there is a search decision, can the execution of the search still be unlawful?

Yes. The validity of the decision and the persons who must be present at the search, the scope of the act, its times and the safeguards of the record are assessed separately.

How many search witnesses must be present in a home when the public prosecutor is absent?

If the conditions of Article 119(4) CMK are met, two persons from the council of elders or the neighbours must be present. The situation of no witness and that of one witness are not assessed with the same outcome; current Court of Cassation case law must be examined.

Is it sufficient if the muhtar only signed the search record?

No. A signature does not in itself prove actual participation in the search. The AYM decision in Mehmet Cengiz and Rıdvan Cengiz is a concrete example of this.

Can a document and a list of items be requested at the end of the search?

Yes. Article 121 CMK provides for the document and inventory of items specified by law to be given upon request. The sealing and complete recording of the items are also important.

Can the police examine every paper they find in a search?

Under Article 122 CMK, the power to examine the documents or papers of the person searched is given to the public prosecutor and the judge. Special provisions and digital data regimes are assessed separately.

Can evidence found in an unlawful search be the basis of a conviction?

Article 38(6) of the Constitution and Articles 206 and 217 CMK restrict the admission and use of unlawful evidence. The way in which the evidence was obtained and its role in the reasoned judgment must be made concrete.

Does the existence of unlawful evidence mean that the case automatically collapses?

No. After the unlawful evidence has been excluded, it is assessed whether the remaining lawful evidence is sufficient to prove the elements of the offence.

Can a conviction based on unlawful evidence be reversed on appeal to the Court of Cassation?

Yes. A judgment being based on evidence obtained by unlawful methods is a case of absolute unlawfulness under Article 289(1)(i) CMK.

Can compensation be claimed for a disproportionate search?

If the conditions are met, Article 141(1)(i) CMK may apply. For the consequences of unlawful seizure, Article 141(1)(j) is also assessed.

Is a compensation application always made to the Compensation Commission?

No. While the Commission regime exists for claims under Article 141(1)(e), (f) and (l) CMK, for sub-paragraphs (i) and (j) concerning disproportionate search and seizure, the High Criminal Court regime under Article 142 CMK comes into play.

Does an unlawful search necessarily mean that the public official committed an offence?

No. The elements of the offence of unlawful search under Article 120 TCK are examined separately; not every procedural shortcoming automatically gives rise to criminal liability.

Related articles: Is an Oral Order Valid for Search and Seizure? Safekeeping, Freezing of Assets and Account Suspension Measures

Conclusion: The lawfulness of a search is determined not by the finding of evidence but by the way it was obtained

A lawful search requires not only the existence of a valid decision, but also that the decision was issued by the competent authority, that the limits of its scope were respected and that the execution safeguards provided for by law were fulfilled. A lawful seizure depends, beyond the item being related to the offence, on statutory authority, the necessary records and the conditions of judicial review. Evidence that can form the basis of a judgment, in turn, must not only have been obtained lawfully but must also be sufficient to prove the elements of the offence charged.

The actual presence of search witnesses, not preventing a lawyer from being present, the safeguards of Articles 121–122 CMK, records that reflect the truth and the reviewability of safekeeping are not mere formal details. They are important for the protection of fundamental rights against state interference and for testing the reliability of evidence.

The search for the material truth and the safeguards of the rule of law are not alternatives to each other. The legal legitimacy of the outcome reached in criminal proceedings depends to a large extent on the methods by which that outcome was reached.

Sources and legal bases

1. Principal legislation: Constitution of the Republic of Türkiye, Articles 13, 20, 21, 35, 36, 38; Code of Criminal Procedure No. 5271 (CMK), Articles 116–127, 130–131, 134, 138, 141–142, 206, 217, 223, 230, 267–271, 272 et seq., 289; Turkish Penal Code No. 5237 (TCK), Articles 54–55 and 120; PVSK Article 4/A; Regulation on Judicial and Preventive Searches; ECHR Articles 6, 8 and Article 1 of Protocol No. 1.
2. Plenary Criminal Chambers of the Court of Cassation (Yargıtay CGK), 18.06.2025, E.2024/381, K.2025/259 — search witnesses, the single search witness distinction and upholding of the judgment of acquittal. Text of the decision.
3. Plenary Criminal Chambers of the Court of Cassation (Yargıtay CGK), 19.11.2025, E.2023/597, K.2025/492 — stopping, search of closed belongings and unlawful evidence. Text of the decision.
4. Constitutional Court (AYM), Yaşar Yılmaz, Application No. 2013/6183, 19.11.2014 — decisive evidence obtained without search witnesses. Decisions Information Bank.
5. Constitutional Court (AYM), Plenary Assembly, Orhan Kılıç, Application No. 2014/4704, 01.02.2018 — unlawful home search and the right to a fair trial. Decisions Information Bank.
6. Constitutional Court (AYM), Second Section, Mehmet Cengiz and Rıdvan Cengiz, Application No. 2019/21704, 20.09.2023 — search record signed afterwards and violation. Decisions Information Bank.
7. ECtHR, Brazzi v. Italy, Application No. 57278/11, 27.09.2018 — effective review of a home search and Article 8 ECHR. Text of the judgment — publication of the Italian Parliament.
8. ECtHR, Kırdök and Others v. Turkey, Application No. 14704/12, 03.12.2019 — protection of digital data relating to lawyer–client confidentiality. ECtHR official press release on the judgment.
9. Official legislation: Legislation Information System and Ministry of Justice Legislation Portal.