Authorization to Use Weapons Under Law No. 5607
ENTRANCE
Article 22 of the Law No. 5607 on Combating Smuggling grants law enforcement units, tasked with protecting the state's financial interests, border security, and public order, the "authority to use firearms" to cope with the high-risk and dangerous situations inherent in the fight against smuggling. The legislator aimed to prevent arbitrariness by strictly defining the legal basis and procedures within which members of the customs enforcement organization, as well as police, gendarmerie, and coast guard elements responsible for preventing, pursuing, and investigating smuggling, can use this authority. According to Article 22, for the legal authority to use firearms to arise, it is essential that suspects apprehended or pursued for smuggling activities in customs areas or border lines are given a proper "stop" warning. If this warning is not heeded, if the escape continues, or if there is physical resistance against the officers, it is not legally permissible for law enforcement to use firearms in a way that directly endangers lives. The principles of "gradual use of force" and "proportionality," which are fundamental elements of the rule of law, must be strictly adhered to as a legal obligation. Accordingly, officers may first issue a verbal warning, then fire a warning shot into the air, and only if the escape cannot be prevented or if a concrete attack against themselves or third parties occurs (in self-defense and necessity), may they use firearms, not with the intention of killing the suspects, but only to ensure their apprehension and to neutralize the danger, to the extent that it is shocking or incapacitating (aiming at the legs). Furthermore, if an investigation and prosecution are initiated against officers for using firearms, their respective institutions will provide legal representation, and the legal fees will be covered by the institutions. As an operational extension of the article, logistical obstruction methods such as firing at the tires or engine components of vehicles carrying smuggled goods are also evaluated within the scope of this authority. As meticulously emphasized in the established jurisprudence of the Constitutional Court and the Court of Cassation, exceeding the limits of the authority to use weapons can directly lead to a violation of the "right to life"; therefore, whether the use of weapons was "absolutely necessary" and "proportionate" in the specific circumstances of the case is meticulously examined by the judicial authorities. Consequently, the authority to use weapons embodied in Article 22 of Law No. 5607 is not a show of force granting unlimited privileges to law enforcement; rather, it is an exceptional, last-resort public instrument of coercion subject to strict legal oversight, which protects the state's operational capabilities against the organized and armed nature of smuggling crimes while also safeguarding the most fundamental rights of the individual.
PART 1: EXAMPLES OF SUPREME COURT DECISIONS REGARDING THE AUTHORITY TO USE WEAPONS UNDER LAW NO. 5607
*This case examines the legal classification of the crime in which the defendant, acting to apprehend fleeing car thieves, used a firearm and caused the death of an innocent third party. In the incident, in a crowded street or intersection with heavy traffic, the defendant fired indiscriminately at the fleeing vehicle in an environment where he had no authority to do so; the victim, who was passing by and had no connection to the incident, was shot in the back of the neck and died. The Court of Cassation, while acknowledging that the defendant claimed his primary aim was to apprehend the suspects, considered the fact that he continued to fire without hesitation in a crowded area where he could foresee that other people might be hit; therefore, the act cannot be considered "causing death as a result of an act exceeding intent" or simple injury exceeding the limits, emphasizing that the defendant clearly possessed the awareness of having the intention to homicide. Therefore, it has been ruled that there is no justification for such shootings, carried out with the intention of arresting someone and without the authority to use a weapon, thus disregarding the safety of those around, and that the perpetrator should be punished for the crime of direct intentional/probable intent homicide. (1st Criminal Chamber, 24.05.2006, 2004/4110, 2006/2101)
*This decision contains a crucial legal finding that addresses the breadth of police officers' duties and powers, and the limits of self-defense/enforcement of the law. The ruling primarily emphasizes that a police officer, even if officially on leave, resting, or working outside their assigned duties, is legally considered "on duty" when encountering a crime within the jurisdiction where they are assigned, and is obligated to intervene in the crime, preserve evidence, and apprehend suspects. In the specific case, the court considered the incident where an off-duty police officer opened fire after being assaulted and having his weapon forcibly taken from him; the court accepted this as part of the legal authority to use firearms granted to police officers under the Police Duties and Powers Law (PVSK). The Court of Cassation, noting that the police officer acted within the limits of the authority granted to him by law in the face of this severe and unjust attack, and that there was no excessiveness or disproportion in his response, ruled that the act should be evaluated within the scope of a justification that eliminates criminal liability (formerly Article 49/1 of the Turkish Penal Code, and in current legal regulations, self-defense or fulfilling a legal provision), and that the defendant police officer should not be punished. (1st Criminal Chamber, October 28, 1993, 1993/2106, 1993/2160)
*This case examines in detail the concept of "enforcing the law," which is one of the justifications for law enforcement officers' use of force and weapons, through a concrete example. Looking at the incident in question, it is seen that the defendant gendarmerie officer and his colleague, who were performing preventive foot patrol duties within the Ümraniye District Gendarmerie Station Command, initiated a search for a stolen white Uno private car between 01:00 and 05:00 AM after it was announced over the radio by the Provincial Gendarmerie Command Communication Center; indeed, there were official reports that this vehicle was involved in various theft and snatching incidents. At approximately 02:45 AM, the suspect vehicle was spotted on Mimar Sinan Boulevard by the defendant and witness law enforcement officers on patrol. The officers repeatedly blew their whistles and made hand signals to the driver to stop. However, the vehicle driven by the victim, far from complying with warnings and instructions, instead of stopping, drove directly towards the suspect and attempted to flee the scene at high speed. In order to stop the vehicle, which endangered the lives of law enforcement officers and continued to flee, the suspect, a gendarmerie officer, first fired a warning shot into the air in accordance with regulations. When the vehicle continued to flee, the officer fired another shot directly at the tire to bring the car to a complete stop. Unfortunately, this bullet, which entered the vehicle through the trunk, struck the victim, causing his death. Subsequent forensic examination and checks of the vehicle revealed that the suspect's car had been stolen by hot-wiring, and that bags and personal belongings of the victims were found in the trunk. In its review, the Court of Cassation considered Articles 11 and 25/a of Law No. 2803 on the Organization, Duties and Powers of the Gendarmerie, Article 16 of Law No. 2559 on Police Duties and Powers (PVSK), Articles 80/a and 87/1-c of Law No. 211 on Internal Service of the Turkish Armed Forces, and Article 39 of the relevant Gendarmerie Regulation when evaluating the defendant's actions. The High Court determined that the defendant used a weapon within the legitimate and legal limits granted to him, acting within the scope of his legal authority, and that this constituted a legitimate law enforcement intervention. Therefore, the Court concluded that the defendant could not be punished, as this falls within the scope of the "fulfillment of the law" justification stipulated in Article 24 of the Turkish Penal Code No. 5237. (1st Criminal Chamber, October 30, 2007, Case No. 2006/4717, 2007/7842)
SECTION 2: GENERAL ASSESSMENT
The authority to use firearms, regulated as an independent and exceptional public power in Article 22 of Law No. 5607 on Combating Smuggling, is a legal registration of the delicate balance between the state's determination to protect its sovereign rights, financial order, and border security, and the individual's most sacred right: the right to life. This relentless struggle against organized, financially powerful criminal networks, sometimes not hesitating to resort to direct armed resistance, along borders, at sea, or in customs areas, has made it inevitable to grant coercive power to law enforcement officers. However, as discussed in detail throughout this study, the legislator has granted this authority not as an absolute right offering an open-ended privilege or impunity to law enforcement agencies, but as an exceptional "last resort" (ultima ratio) instrument, with its conditions, timing, and method of execution coded down to the finest detail. The fundamental philosophy underlying the law is to ensure the operational effectiveness of the fight against smuggling while guaranteeing that the state does not compromise its status as a "state governed by the rule of law." Accordingly, the principles of gradual use of force and proportionality, which play the most central role in the application of Article 22, stipulate that law enforcement must exhaust all peaceful and deterrent means before resorting to their weapons. A duly issued "stop" warning, followed by a warning shot into the air, and only at that inevitable breaking point when the suspect cannot be stopped by any other technical or physical means, is the firing of a weapon for the purpose of arrest (without intent to kill, but with a jarring force) the steps that define the limits of the legitimacy of this authority.
From the perspective of judicial practice and the approaches of high courts, it is evident that both the Constitutional Court's individual application decisions and the established jurisprudence of the Supreme Court's Criminal General Assembly apply a very strict "absolute necessity" and "proportionality" review in cases of injury or death resulting from the use of weapons in smuggling offenses. Judicial authorities do not consider the fulfillment of formal requirements in the legislation sufficient for legitimacy; they weigh each variable separately, such as whether the incident occurred at night or during the day, the terrain the suspect fled on, the nature of the goods being transported (for example, the difference in risk between drug or arms smuggling and commercial goods smuggling), and the concreteness of the threat directed at the law enforcement officer. This rigorous review aims, on the one hand, to prevent law enforcement officers from becoming passive due to unnecessary criminal investigations while performing their duties, and on the other hand, to prevent the economic damage caused by the smuggling act from being disproportionately punished in a way that outweighs the right to life.
In summary, the ability to exercise the authority to use firearms under Law No. 5607 in a way that does not offend public conscience or violate international human rights standards in the future is directly related to the continuous, high-quality, and simulation-based training of law enforcement personnel on these technical and legal limits. While Article 22 of the law serves as a legal hallmark of the state's determination and deterrent power in combating crime, the limits of this power are defined by the principles of justice, fairness, and respect for human dignity. As long as this fine line between public interest and the protection of individual rights is maintained, procedural rules are meticulously applied in light of high court decisions, and the use of firearms always remains strictly a last resort, this authority will continue to function as a legitimate, balanced, and democratic element of public power within the Turkish criminal justice system.
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