As a rule, the police cannot carry out a search without a judge’s decision. Where delay would be prejudicial (gecikmesinde sakınca), a written order of the public prosecutor is sufficient, or, if the prosecutor cannot be reached, a written order of the police chief (kolluk amiri). However, for homes, workplaces and enclosed areas not open to the public, a police chief’s order is not enough; a judge’s decision or the prosecutor’s written order is required (Code of Criminal Procedure (CMK) art. 119(1)). Evidence found in a search carried out in breach of these rules cannot be used as the basis of a judgment.
Who authorises a search?
The Constitution makes searches of the person, belongings and the home subject to a judge’s decision. Where delay would be prejudicial, it permits a written order of the authority empowered by law (Constitution arts. 20, 21). The CMK allocates this power as follows:
| Place to be searched | Who can authorise it? |
|---|---|
| Person, belongings, vehicle and other places | Judge; prosecutor if delay would be prejudicial; police chief if the prosecutor cannot be reached |
| Home, workplace, enclosed area not open to the public | Judge; only the prosecutor if delay would be prejudicial |
The results of a search carried out on a police chief’s order are reported immediately to the Chief Public Prosecutor’s Office. The police must also draw up a detailed report showing why the prosecutor could not be reached and by what means the prosecutor was contacted, and place it in the file (Regulation art. 7).
Every search requires reasonable suspicion (CMK art. 116). The home or person of someone who is not a suspect may be searched only if there are concrete facts suggesting that the person or evidence being sought is there (CMK art. 117).
What does “where delay would be prejudicial” mean?
The Regulation on Judicial and Preventive Searches makes it subject to two conditions (art. 4):
- the likelihood that, if action is not taken immediately, evidence will be lost, the suspect will flee or their identity cannot be established,
- and there is no time to obtain a decision from a judge.
The second condition is often overlooked. If the tip-off was received during working hours and there was enough time to reach a judge, the prosecutor’s order becomes open to challenge. Searching the same place on a prosecutor’s order after the criminal judgeship of peace (sulh ceza hâkimliği) has rejected the search request has also been held unlawful.
The Assembly of Criminal Chambers of the Court of Cassation (Yargıtay CGK), on the other hand, has not treated it as mandatory for the words “where delay would be prejudicial” to be written in the order separately. What is decisive is that this situation actually existed in the case. The order must, however, clearly state the act giving rise to the search, the person, address or items to be searched, and the period of validity (CMK art. 119(2)).
In urgent cases the prosecutor may give the order orally; however, an oral order must also be communicated in writing as soon as possible (CMK art. 161(3)).
Is a judge’s approval required afterwards?
The Constitution provides that, where delay would be prejudicial, the decision of the competent authority must be submitted to a judge for approval within 24 hours (Constitution arts. 20, 21). The CMK, however, has not separately regulated this approval procedure for searches; it has regulated it expressly for seizure (el koyma): a seizure made without a judge’s decision is submitted to a judge for approval within 24 hours; if the judge does not decide within 48 hours, the seizure is lifted automatically (CMK art. 127(3)). If items were seized during the search, it must always be checked whether approval was obtained in time.
Rules to be followed during the search
- Two witnesses: If the prosecutor is not present, two people from the neighbourhood council (ihtiyar heyeti) or from the neighbours are present at a search of a home, workplace or other enclosed place (CMK art. 119(4)).
- Presence: The occupant may be present at the search; if not, their representative, a relative, someone living with them or a neighbour is called. A lawyer cannot be prevented from being present at the search (CMK art. 120).
- Night: Homes, workplaces and enclosed places cannot be searched at night; cases of being caught in the act (suçüstü) and cases where delay would be prejudicial are the exceptions (CMK art. 118).
- Report and document: The full identities of those carrying out the search are written in the report (CMK art. 119(3)). On request, the person is given a document showing the basis of the search and a list of the items seized (CMK art. 121).
A preventive search does not replace a judicial search
A preventive search (önleme araması) is carried out to prevent the commission of an offence or a danger. It requires a judge’s decision or, where delay would be prejudicial, a written order of the district governor or governor (mülki amir) (Police Powers Law (PVSK) art. 9). It may be carried out in places such as assembly areas, places open to the public and public transport vehicles. Preventive searches cannot be carried out in homes, residential premises and workplaces not open to the public.
Once a suspicion of an offence arises regarding a specific person, the rules on judicial searches apply. According to the Assembly of Criminal Chambers, a preventive search may be the start of an investigation, but it cannot take the place of a judicial search. Specific examples are discussed in our article on unlawful searches in drug cases.
Does saying “I consented” make the search valid?
As a rule, no. The wording in the Regulation that allowed entry without a decision with the consent of the person concerned was annulled by a decision of the Council of State (Danıştay). The Assembly of Criminal Chambers has also stated that handing over an item that is not in plain view “with consent” does not, as a rule, remove the requirement to obtain a decision. On the other hand, taking an item that is in plain view does not count as a search.
Evidence found by chance
If evidence of another offence is found during a search, it is secured and the prosecutor’s office is notified immediately (CMK art. 138(1)). This rule assumes a search conducted in accordance with procedure; if the search was unlawful from the outset, the chance evidence suffers from the same defect.
The consequence of an unlawful search
Findings obtained unlawfully cannot be accepted as evidence (Constitution art. 38(6)). Such evidence is rejected (CMK art. 206(2)(a)). An offence can only be proven with lawful evidence (CMK art. 217(2)), and the reasoning of a conviction must separately and expressly identify the unlawful evidence (CMK art. 230(1)(b)). If no evidence sufficient for a conviction remains, an acquittal is given.
If a search was carried out, what should be checked?
- Decision or order: Is there a judge’s decision, or an order of the prosecutor or police chief, in the file?
- Written form: Is the order in writing; if it was given orally, was it put in writing afterwards?
- Authority: Was a home or workplace searched on a police chief’s order?
- Justification: Was there really a risk in delay? Was there time to reach a judge between the tip-off and the search?
- Scope: Are the act, person, address and period written in the order; did the search stay within these limits?
- Witnesses: If the prosecutor was absent, were two witnesses present from the beginning to the end of the search?
- Report: Are the officers’ identities, the time and the items seized recorded correctly?
- Approval of seizure: If items were seized without a judge’s decision, was the seizure submitted for approval within 24 hours?
Recent Court of Cassation decisions
- Court of Cassation Assembly of Criminal Chambers, 02.07.2025, E. 2024/147, K. 2025/312: Contraband cigarettes were seen in a shop during a routine inspection, and a written search order was obtained from the prosecutor. Because the order stated the act, person, address and period, and the likelihood of the goods being removed constituted a situation where delay would be prejudicial, the search was held lawful. The Assembly also stressed that a preventive search cannot take the place of a judicial search, and that handing over an item not in plain view “voluntarily” does not, as a rule, remove the requirement for a decision. Decision text
- Court of Cassation 12th Criminal Chamber, 20.11.2025, E. 2024/1575, K. 2025/8094: The tip-off was received on a weekday at around 15:00, and the prosecutor issued a search order valid from 16:00. The order contained no reasoning on the risk of delay, and there was time to obtain a decision from a judge. The acquittal, which treated the search as unlawful, was upheld. Decision text
- Court of Cassation 12th Criminal Chamber, 06.03.2025, E. 2022/5898, K. 2025/2444: The police learned of the offence around midday and, nine hours later, at night, entered the home on the prosecutor’s oral instruction; there was no judge’s decision or written order. Since there had been time to obtain a decision, the search was held unlawful; it was also stated that consent does not remove the need for a decision. The acquittal was upheld. Decision text
- Court of Cassation 11th Criminal Chamber, 03.12.2024, E. 2024/47, K. 2024/14611: The criminal judgeship of peace rejected a request to search a home, and on the same day the same home was searched on the prosecutor’s written order. This order was held unlawful. In searches without the prosecutor present, the failure to have a second witness alongside the neighbourhood headman (muhtar) was also held contrary to CMK art. 119(4). Decision text
This article is for general information only and is not legal advice. For your specific situation, please seek advice from a lawyer.