Informatıon Note On The Constıtutıonal Court Decısıon Regardıng The Dıstınctıon Between The Measure Of Takıng Property Into Custody And Seızure Wıthın The Scope Of Interventıon In Property In Crımınal Proceedıngs

In the objection application numbered 2024/183 filed before the Constitutional Court (“CC”), the subject matter of the dispute arose within the scope of a criminal proceeding concerning the offence of infringement of trademark rights by way of imitation or confusion. Within the course of the proceedings, the goods found at the workplace of the accused, which were considered to constitute the subject of the alleged offence, were taken into custody pursuant to Article 123 of the Code of Criminal Procedure No. 5271 (the “Law”) as items deemed to be useful as evidence for the establishment of the offence.

The Uşak 3rd Criminal Court of First Instance (the “Court”), which was conducting the proceedings, evaluated that the taking of such goods into custody resulted in the restriction of the owner’s right of disposition over the property and, therefore, could constitute an interference with the right to property. The Court further noted that, although the measure of taking into custody is formally based on the consent of the individual, the consent given within the context of criminal proceedings may not always reflect the individual’s free will.

In this context, it was argued that the interference in question may be incompatible with the provisions of the Constitution concerning the limitation of fundamental rights and freedoms as well as the right to property. Accordingly, the Court applied to the CC by way of objection for the review of the constitutionality of the relevant provision.

Assessment of the CC

The CC assessed the legal nature of the measure of taking into custody items that constitute evidence within the scope of criminal proceedings. In this context, the CC stated that property values which are related to the alleged offence and deemed useful as evidence, or which constitute the subject of confiscation, may be taken into custody by the competent authorities, provided that such items are delivered with the consent of the person holding possession or ownership over them upon the request of the judicial authorities conducting the investigation or prosecution. The Court further determined that this measure ensures that the property remains under the control of the competent authorities throughout the investigation and prosecution process and, therefore, constitutes a temporary interference with the right to property.

Within this framework, the CC emphasized that, since Article 35 of the Constitution stipulates that the right to property may only be restricted by law, the interference in question must be examined in light of Article 13 of the Constitution, which sets forth the general principles governing the limitation of fundamental rights and freedoms, particularly in terms of legality, legitimate aim and proportionality.

Accordingly, the CC concluded that:

• In terms of the principle of legality, the measure of taking into custody is explicitly regulated under the Law in a clear and foreseeable manner;
• In terms of legitimate aim, the interference serves the purposes of establishing the material truth, preserving evidence, and ensuring the effective implementation of the confiscation measure;
• Within the scope of the proportionality assessment, the measure is suitable and necessary for the preservation of evidence; that it is, as a rule, based on the consent of the person concerned; that in the absence of such consent, stricter safeguards applicable to the measure of seizure come into play; and that disciplinary detention is not directly linked to the taking into custody measure but is instead applicable in cases of non-compliance with a seizure order.

In addition, the CC, taking into account that the property may be returned once the conditions requiring its custody cease to exist and that the measure is subject to judicial review at all stages of the investigation and prosecution, concluded that the interference is proportionate.

Within this framework, the CC held that the measure of taking property into custody based on the consent of the person concerned, and the resulting interference with the right to property, do not violate constitutional safeguards, and that the rule is in conformity with the Constitution.

Dissenting Opinions

However, in the dissenting opinions put forward by the members who disagreed with the decision, a different assessment was made regarding the practical effects of the measure of taking into custody. The dissenting members argued that, although the rule is formally based on the consent of the person concerned, such consent does not always reflect free will due to the nature of criminal proceedings. In particular, they emphasized that the provision of sanctions such as disciplinary detention in cases where the property is not delivered exerts a de facto coercive effect on the individual.

In this context, the dissenting opinions acknowledged that, in theory, the measure of taking into custody is distinct from seizure; however, they stated that, in practice, the boundary between these two measures becomes blurred and that the interference in question produces effects similar to those of seizure. Furthermore, it was argued that the safeguards regarding the duration, scope, and supervision of the interference are not sufficiently clear and foreseeable, and therefore the interference with the right to property cannot be regarded as proportionate.

For these reasons, the dissenting members maintained that the contested provision is contrary to Articles 13 and 35 of the Constitution and should be annulled.

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