Monitoring with Technical Means in Criminal Proceedings

1. Introduction

Technological advancements have significantly altered methods of gathering evidence in criminal proceedings. Surveillance using technical meansis a special protective measure employed in certain crimes when there is strong suspicion that a crime has been committed and it is impossible to obtain evidence through other means.

This method involves monitoring the activities of a suspect or defendant in public areas by recording their images or audio . In Turkish law, this regulation is found in Article 140 of the Code of Criminal Procedure (Law No. 5271)

However, since surveillance using technical means is a measure that directly the right to privacy and freedom of communication , it is meticulously examined in the jurisprudence of both the European Court of Human Rights and the Court of Cassation, and unlawful practices often lead to the invalidation of evidence.

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2. Legal Basis and Conditions

According to Article 140 of the Code of Criminal Procedure, surveillance using technical means can be carried out under the following conditions:

1. There must be strong suspicion of a crime
   – not just suspicion, but strong suspicion supported by concrete facts.

2. The inability to obtain evidence by other means
   – Law enforcement, prosecutors, or judges must demonstrate that less restrictive measures will not achieve the desired result.

3. The law applies to specific offenses listed in the catalog
   – for example, organized crime, drug trafficking, prostitution, arms smuggling, embezzlement, and extortion.

4. Implementation by court order
   – In cases where delay would be detrimental, the public prosecutor may issue a decision, but it must be submitted to a judge for approval within 24 hours.

5. Time limit
   – The decision can be made within a maximum of 4 weeks, and can be extended by another week if necessary.

6. Public space restriction
   – Monitoring with technical equipment is carried out in public places, not in private areas such as residences.

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3. Technical Monitoring in ECHR Judgments

The European Court of Human Rights generally considers technical surveillance Article 8 of the ECHR – Protection of private life and correspondence .

• Klass and Others / Germany (1978): Stated that for covert surveillance measures to be lawful, they must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.

• PG and JH / United Kingdom (2001): Continuous and targeted technical surveillance, even in public spaces, may constitute a violation of privacy.

• Uzun / Turkey (2013): Long-term technical surveillance by the police and its lack of oversight was deemed a violation of Article 8.

The ECHR places particular emphasis on the principle of proportionality ; the monitoring period must be proportionate to its scope and justification

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4. Supreme Court Decisions and Examples

3.1. Court of Cassation, 10th Criminal Chamber – Case No. 2018/2422 E., Decision No. 2021/5753 K.

Incident: Following a decision to assign an undercover investigator, video and audio recordings were made of the suspect without a separate court order for surveillance using technical means.
Decision: Under Article 140 of the Code of Criminal Procedure, surveillance conducted without a specific court order is unlawful; the evidence obtained must be deleted and not used.

3.2. Court of Cassation, 10th Criminal Chamber – Case No. 2023/9234 E., Decision No. 2023/6015 K.

Case: A surveillance order issued for another crime was used on a suspect accused of drug use.
Decision: The practice is ethically and legally inappropriate; it cannot be used as evidence and cannot form the basis of a verdict.

3.3. Supreme Court Criminal General Assembly – 2022/78 E., 2022/649 K.

Case: The discussion focused on the need to evaluate the legal requirements for monitoring under Article 140 of the Code of Criminal Procedure.
Decision: The criteria specified in Article 140 (type of crime, lack of evidence by other means, judicial decision, etc.) must be meticulously applied; oversight must be ensured.

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5. Problems Encountered in Practice

• Exceeding deadlines and failure to renew decisions.

• Technical surveillance is conducted outside the scope of catalog crimes

• Monitoring in private areas (such as homes or inside vehicles).

• Lack of concrete justification in the decisions.

• Legal irregularities in the process of preserving and destroying evidence.

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6. Evaluation and Recommendations

Surveillance using technical means is an important tool in combating crime; however, its excessive or unlawful use can lead to the invalidation of evidence and compensation claims due to human rights violations

• Decisions on concrete reasons .

• The deadlines must be followed meticulously.

• The data obtained only be used for the relevant investigation .

• Law enforcement and prosecutors must be made to internalize the standards of the European Court of Human Rights.