The Concept Of Exigent Circumstances In Judicial Search

Search is one of the most frequently used protection measures in the fight against crime. Search measure is divided into two; judicial and preventive search. In this study, the cases of exigent circumstan ces within the framework of judicial search will be examined. The search represents a significant intervention on basic rights and freedoms. Therefore, the legislator has required a judge's deci sion to search, as in other protection measures. However, due to the effective fight against crime and the needs in practice, exceptions to the requirement of a judge's decision have been introduced. The most important of these exceptions is the exigent circumstances. The public prosecutor will be able to issue a search warrant in the presence of an exigent circumstance. In cases where the public prosecu tor cannot be reached, a search may be conducted with the order of the chief of law enforcement. However, the search warrant authority of the law enforcement officer is limited to unenclosed areas. The exigent circumstances are one of the most problematic areas regarding the search. The main problems related to exigent circums tances in judicial search are examined under three main headings: the ambiguous nature of the concept of exigent circumstances, the prob lems arising from the regulations in the legislation and the problems arising from the practice. The concept of exigent circumstances is very broad and ambiguous. This concept should be limited with objective criteria and its judicial scrutiny should be more effective. Otherwise, it will be possible to apply this exception completely arbitrarily. In our study, we have tried to provide objective criteria regarding the exigent circumstance, especially by benefiting from court decisions. There are also problems arising from the regulations in the legislation regarding the exigent circumstances. To eliminate the deficiencies in the legislation, it is necessary to clarify the conditions of transfer of authority to the chief of law enforcement and to ensure that all search orders are submitted to the approval of the judge. The problems in practice constitute the biggest problem area regarding the exigent circumstances in judicial search. To solve the problems in practice, a comprehensive examination has been made within the framework of the Court of Cassation, the Constitutional Court, the European Court of Human Rights (ECHR) and comparative law. It is observed that there is no consistent practice in the decisions of the Court of Cassation about the exigent circumstances. Some decisions of the Court of Cassation only superficially deal with the objections regarding the exigent circumstances. On the other hand, there are also decisions of the Court of Cassation in which the Court has made a strict examination of the exigent circumstances and has set important criteria. The Constitutional Court, on the other hand, give priority to the assessment of the investigating authorities in exigent circumstances. The Constitutional Court, which refrains from taking an interventionist attitude in this regard, states that it may decide on a violation of rights if there is a clear arbitrariness in the restriction of the guarantees regarding the inviolability of residence and the right to privacy. There are decisions of the European Court of Human Rights (ECHR) that examine in detail the exigent circumstances within the scope of the search measure. The ECHR states that in searches conducted without a judge's decision due to the existence of exigent cir- cumstances, the reasons for not obtaining a decision from the judge should be justified in detail with concrete information in the search warrant. Furthermore, the ECtHR attaches great importance to an effective ex-post factum judicial review after the search as a guaran- tee mechanism of basic rights. The German Federal Constitutional Court has set basic criteria such as the exigent circumstances should not be speculative or hypothetical and should be related to the concrete event. The US Supreme Court has addressed this issue in different decisions and stated that the gravity of the offence alone is not sufficient to decide the existence of exigent circumstances. Furthermore, the US Supreme Court has ruled that exigent circumstances cannot be accepted in minor crimes due to the possibility of destruction of evidence. As a result of this examination, we are of the opinion that in order to solve the problems related to cases of exigent circumstances, it is necessary to increase the guarantees regarding basic rights and freedoms through legislative regulation, to solve the structural problems identified regarding the judicial organisation and to deal with the concept of exigent circumstances within the framework of the principles and criteria embodied in court decisions. However, the most important step would be to change the perspective in practice that sees the guarantee of a judge's decision as a burden or a formal procedure.