OECD > NATIONAL STRUGGLE > REGULATIONS IN TURKISH PENAL CODE

In the Turkish Penal Code it is appoved that legal characteristic of confiscation is a security measure. That’s why, in order to render decision of confiscation, an offence should not be committed and also anybody doesn’t need to be convicted of this offence. For instance, although he is not punished as it is a juvenile who used a dangerous matrials in commission of an offence or he is mentally ill, confiscation order may be rendered.
Articles 54 and 55 of Turkish Penal Code authorizes State to organize operation on indivudual’s rights of possession and bring sanctions on them.  Confiscation of property is regulated in article 54; confiscation of gains is regulated in article 55.
According to first paragraph of article 54 which regulates confiscation of property, it is mentioned that: on condition that it does not belong to any third party acting in good faith,

  • property that is used for committing an intentional offence or
  • property that is allocated for the purpose of committing an offence, or
  • property that has emerged as a result of an offence shall be confiscated.

In the second paragraph of article 54, confiscation the value of this particular property is regulated. According to this, possessions which fall in scope of the following an amount of money equal to the value of this particular property shall be confiscated.

  • destroyed,
  • given to another,
  • consumed, or,
  • for any other reason the confiscation becomes impossible.

In the third paragraph of article 54, the judge, when necessary, is entitled to relinquish the confiscation. If it is understood that

  • property used in an offence would lead to more serious consequences than the offence itself, and
  • would be unfair,

confiscation may not be ordered.

In the forth paragraph of article 54, property that is subject to confiscation any time is stated.  So any property where, the production, possession, usage, transportation, buying and selling of which has constituted an offence, shall be confiscated.
In the fifth paragrapf of article 54, partial confiscation is regulated. So it is stated that when only a certain part of a property needs to be confiscated, then only that part shall be confiscated, if it is possible to do so without harming the whole, or if it is possible to separate that part of it.

In the sixth and the last paragrapf of article 54, it is mentioned that where property is shared by more than one person, only the share of the person who has taken part in the crime, shall be confiscated.

Confiscation of Gains is regulated in article 55 as follows;

  • Material gain obtained through the commission of an offence, or
  • forming the subject of an offence or
  • obtained for the commission of an offence
  • and the economic earnings obtained as a result of its investment or conversion,
  • shall be confiscated.

Confiscation under this section should only be ordered where it is impossible to return the material gain to the victim of the offence.
 In the second paragraph, it is mentioned that where property and material gain which is subject to confiscation cannot be seized or provided to the authorities then value corresponding to such property and gains shall be confiscated.

In the article 60 of Turkish Penal Code, security measures specific to legal entities is regulated. It is stated in the second paragraph that the provisions relating to confiscation shall also be applicable to civil legal entities in relation to offences committed for the benefit of such entities.

REGULATIONS IN THE CODE OF CRIMINAL PROCEDURE
Securing and seizure of materials and gains were regulated in 123rd article of the Code of Criminal Procedure. According to this;
- Materials likely to be useful as means of proof or values of property which are subject to confiscation of goods or confiscation of gains shall be secured.
- In cases where the individual who carries the evidence refuses to surrender voluntarily, those items may be seized by force.
In 124th article of the Code of Criminal Procedure;
A person who carries such material or other values of property is obliged to show and surrender this item upon request. If the surrender is refused, disciplinary arrest provisions are applicable against the possessor. However, this provision does not apply to the suspect or the accused or those persons, who may refrain from giving a testimony as a witness.
In 127th article of the Code of Criminal Procedure;
Authorization for ordering seizure decision was regulated in this article. According to the regulation the seizure, by rule, may be conducted by the decision of the judge. In first paragraph of the article it is stated that the seizure may be conducted by the members of the security forces upon the decision of the judge, if there is peril in delay, upon the written order of the public prosecutor; in cases where it is not possible to reach the public prosecutor, upon the written order of the superior of the security forces.
In second paragraph of the article it is stated that the open identity of the member of the security forces shall be included in the record of the seizure.
In third paragraph of the article it is stated that where a seizure was made without a warrant of a judge, the seizure shall be submitted to the judge who has jurisdiction for his approval within 24 hours. The judge shall reveal his decision within 48 hours from the act of seizure; otherwise the seizure shall be automatically void.
In fourth paragraph of the article it is stated that the individual whose goods of his possession or his other property values have been seized, may ask the judge to give an order in this issue at any time.
In fifth paragraph of the article it is stated that the seizure shall be notified to the victim, who suffered losses, without any delay.
One of the most important regulations in the Code of Criminal Procedure concerning the seizure is the 128th article. Seizure to immovable, rights and receivables are regulated in 128th article of the Code of Criminal Procedure.
According to 1st paragraph of the article it was stated that the following items belonging to the suspect or the accused may be seized in  cases where there are strong grounds of suspicion tending to show that the crime under investigation or prosecution has been committed and that they have been obtained from this crime;

  • Immovable goods,
  • Transport vehicles of land, sea or air,
  • All kinds of accounts in banks or other financial institutions,
  • All kinds of rights and credits by real or juridical persons,
  • Valuable documents,
  • Shares at the firm where he is a shareholder,
  • Contents of the rented safe,
  • Other assets belonging to him.

However, some restrictions were brought with the 2nd paragraph and opened the pave for the application of this provision not to all crimes but only to the catalog crimes stated in the article. Type of goods and the method of seizure are regulated in 3-4-5-6 and 7th paragraphs of the article.

In ninth and final paragraph, only a judge would order for a seizure according to the provision of this article. Unlike it was in 127th article (Securing and seizure of materials and gains) the seizure shall not be conducted with the public prosecutor if there is peril in delay, and with the superior of the security forces in cases when the public prosecutor is not reached.
 

 

 
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