Wiretaps, signal data and technical surveillance, and the limits the file has to respect.

A file described as a wiretap file normally contains several distinct measures. Turkish law treats them separately, with different conditions and different limits. Reading them as one block is the first mistake.

• Interception and recording. Listening to telecommunications, recording them, and evaluating signal data — CMK 135/1. This requires a judge's decision, or, in cases where delay is prejudicial, a decision of the public prosecutor. The prosecutor must submit that decision to the judge immediately, and the judge decides within twenty-four hours at the latest. If the period expires or the judge decides otherwise, the prosecutor lifts the measure immediately.
• Communications detection. The record of who communicated with whom, when and for how long — CMK 135/6. In the investigation stage it rests on a judge's decision, or a prosecutor's where delay is prejudicial; in the prosecution stage, on the court's. A prosecutor's decision goes to the judge within twenty-four hours and the judge decides within twenty-four hours. If that does not happen, the records are destroyed immediately.
• Locating a mobile telephone. Under CMK 135/5, the location of a mobile telephone may be established in order to apprehend the suspect or accused. The decision states the number and the duration.
• Technical surveillance. Monitoring activity with technical devices, and audio or video recording — CMK 140. The same decision-maker and the same twenty-four hour approval structure apply.

Two people the law puts outside the measure

Under CMK 136, Article 135 cannot be applied to the telecommunications devices at the office, home or domicile of defence counsel, in relation to the offence charged against the person they defend.

Under CMK 135/3, communication between the suspect or accused and persons who may refuse to give evidence cannot be recorded; where this is realised after recording has taken place, the recordings are destroyed immediately. CMK 45 lists who those persons are: a fiancé or fiancée; a spouse, even after the marriage has ended; ascendants and descendants by blood or by marriage; blood relatives up to and including the third degree and relatives by marriage up to and including the second degree; and persons connected by adoption.

CMK 135/9 closes the article. Outside the principles and procedures it sets out, no one may listen to or record another person's telecommunications.

CMK 135/8 is the provision to read twice. It states that the provisions on listening, recording and the evaluation of signal data may be applied only in relation to the offences it then lists. Among them, from the Turkish Criminal Code:

• Migrant smuggling and human trafficking (TCK 79, 80) and trade in organs or tissue (TCK 91)
• Intentional killing (TCK 81, 82, 83) and torture (TCK 94, 95)
• Sexual assault (TCK 102, excluding the first paragraph) and sexual abuse of children (TCK 103)
• Qualified theft (TCK 142), robbery (TCK 148, 149) and qualified fraud (TCK 158)
• Manufacture of and trafficking in narcotic or stimulant substances (TCK 188)
• Counterfeiting money (TCK 197), establishing an organisation for the purpose of committing crime (TCK 220, third paragraph), prostitution (TCK 227), rigging a tender (TCK 235), usury (TCK 241), bribery (TCK 252), laundering of assets derived from crime (TCK 282)
• Offences against the unity and territorial integrity of the State, against the constitutional order, and against State secrets and espionage (TCK 302, 309, 311, 312, 313, 314, 315, 316, 328, 329, 330, 331, 333, 334, 335, 336, 337)

The list continues outside the Criminal Code: arms smuggling under Article 12 of Law no. 6136; embezzlement under the third and fourth paragraphs of Article 22 of the Banking Law; offences under the Anti-Smuggling Law that carry imprisonment; and offences under Articles 68 and 74 of the Law on the Protection of Cultural and Natural Property.

What is not there

• TCK 191 — purchase, acceptance or possession of narcotics for personal use — does not appear. Only TCK 188 does.
• Sexual assault appears without its first paragraph.
• Theft appears only in its qualified form, and fraud only in its qualified form. Ordinary theft and ordinary fraud are absent.
• The State secrets and espionage group is written out article by article, and TCK 332 is not among the articles written out. Nothing in the paragraph extends it to the articles that follow.

Two threshold conditions apply on top of the list, both from CMK 135/1: there must be strong grounds of suspicion based on concrete evidence that an offence has been committed, and there must be no possibility of obtaining evidence by other means. A decision that recites those words without showing them is a decision that can be argued about.

Every one of these measures runs on a clock fixed by statute. Material captured after a decision expired was not captured under that decision.

What the decision itself must contain

CMK 135/4 sets this out: the type of offence charged, the identity of the person subject to the measure, the type of communication device, the telephone number or the code enabling the connection to be identified, and the type, scope and duration of the measure. Under CMK 135/2, the request must be accompanied by a document or report showing the owner of the line or device and, where known, its user.

The constitutional frame

Article 22 of the Constitution provides that everyone has freedom of communication and that its secrecy is the rule. Communication may not be impeded and its secrecy may not be touched without a duly given judge's decision, or — where delay is prejudicial and on one of the grounds the Article lists — the written order of an authority empowered by law. That order is submitted to the judge within twenty-four hours, and the judge announces the decision within forty-eight hours; failing that, the order lapses of itself.

Under CMK 135/7, the decisions and operations under the article are kept secret for as long as the measure lasts. This is why intercepts are almost always something a defendant learns about after the fact, from the file.

CMK 140 permits monitoring, with technical devices, of the suspect's or accused's activities in places open to the public and of their workplace, with audio or video recording. The same two threshold conditions apply: strong grounds of suspicion based on concrete evidence, and no possibility of obtaining evidence by other means.

The offence list in CMK 140/1 is close to the CMK 135 catalogue, but it is not identical. Torture (TCK 94, 95), sexual assault (TCK 102) and sexual abuse of children (TCK 103) appear in CMK 135 and do not appear in CMK 140; nor does the embezzlement offence in the third and fourth paragraphs of Article 22 of the Banking Law, which CMK 135/8-c includes and CMK 140/1 leaves out. Where a file relies on both measures, each has to be checked against its own list.

Two limits on the face of the article

• CMK 140/5. The provisions of the article cannot be applied in a person's residence. Technical surveillance of the home is outside what this measure authorises.
• CMK 140/4. Evidence obtained cannot be used outside an investigation or prosecution for the offences listed in the article, and where it is not needed for the criminal proceedings it is destroyed immediately under the supervision of the public prosecutor.

CMK 140/2 carries the same approval structure as interception: the judge decides, the prosecutor may decide where delay is prejudicial, that decision goes to the judge within twenty-four hours, the judge decides within twenty-four hours at the latest, and if the period expires or the judge decides otherwise the recordings are destroyed immediately.

CMK 140/A adds that the procedure and principles for applying Articles 135 to 140 are laid down by regulation. Much of the day-to-day handling of recordings, transcription and destruction sits there, and it is read against what the file records actually show.

A surveillance file is answered with documents, in a fixed order. Very little of it is argument.

The decision, before the transcript

The first thing to obtain is the interception or surveillance decision itself, with its date, the offence it names, its duration and every extension. Transcripts appear in files far more often than the decisions that authorised them. Until the decision is on the table, none of the real questions can be answered: which offence was invoked, whether that offence is in the catalogue, when the period began, when it ended, and who approved it.

Time

The arithmetic is simple and it is done first. Start date; two months; one further month; and, for offences within the activity of an organisation, no more than three further months in steps of one month. Recordings dated outside those limits need a separate lawful basis, and the file has to show it.

Accidental findings

CMK 138/2 governs what happens when interception produces evidence of something unrelated: it may be preserved and reported to the prosecutor only where it raises suspicion that one of the offences listed in Article 135 has been committed. The cross-reference in that provision still points to the sixth paragraph of Article 135, although successive amendments moved the catalogue to the eighth. The list it means is the catalogue. The drafting is a reminder that these provisions are read line by line.

The transcript is not the recording

Under CMK 137/2, recordings are transcribed into text by persons appointed by the public prosecutor's office, and recordings in a foreign language are translated into Turkish through an interpreter. What sits in the file is therefore a transcription, and often a translation of a transcription. Requesting the audio itself, and asking for the transcription and the translation to be examined, is a normal step — particularly where the conversation was in the defendant's own language, in dialect, or in a mixture of languages, and where a single word decides whether a call is about a delivery or about something else.

What follows if the material is unlawful

Four provisions work together here.

• Constitution, Article 38. Findings obtained contrary to law cannot be accepted as evidence.
• CMK 206/2-a. Evidence offered is rejected where it has been obtained contrary to law.
• CMK 217/2. The offence charged may be proved by any evidence obtained lawfully.
• CMK 230/1-b. The reasoned judgment must discuss and evaluate the evidence, state which evidence was relied on and which rejected, and — separately and expressly — identify evidence in the file obtained by unlawful methods.

A judge's decision may be challenged by way of objection under CMK 267. Under CMK 268, unless the law provides otherwise the objection is made within two weeks of the day the person concerned learned of the decision, by a petition to the authority that gave it.

What this page cannot tell you

Whether the decision in your file is lawful. That turns on documents no one can read from outside: the decision, its extensions, the request and the report attached to it, the operation record, and the dates on the recordings themselves. This page sets out the tests. It does not apply them, and no page can.

Not every intercept in circulation is a criminal-procedure intercept. Two separate preventive regimes exist, and neither is an evidence-gathering power.

• Law no. 2559, additional Article 7. Police preventive interception, aimed at preventing the commission of specified offences, on a judge's decision or — where delay is prejudicial — on the written order of named senior officials. The written order is submitted to the judge within twenty-four hours; the judge decides within forty-eight hours at the latest. Decisions may be given for at most three months, extendable by periods of not more than three months and at most three times; for continuing dangers within a terrorist organisation's activity, the judge may extend repeatedly by periods of not more than three months. The authorised judge is a member of the Ankara ağır ceza mahkemesi. Where the measure ends, the recordings of the content are destroyed within ten days at the latest and a record is kept for inspection.
• Law no. 2937, Article 6. The equivalent regime for the national intelligence organisation, with a written order submitted to the judge within twenty-four hours, a judicial decision within twenty-four hours, the same three-month structure, and the same ten-day destruction of content recordings.

Both provisions carry the same two sentences, and they are the reason the distinction matters. The records obtained through these activities cannot be used outside the purposes stated in the provision. And interception carried out contrary to the procedures and principles set out in the article is not legally valid.

Where an ordinary criminal file traces back to preventive material — and in narcotics, smuggling and organisation files it often does — the chain from that material to the judicial decision is one of the first things a defence reads. The question is not whether the intelligence existed. It is what, in the criminal file, is standing on it.

The rules above apply to everyone. Several of them work differently in practice when the person they apply to is not Turkish and may not be in Türkiye when the file ends.

Language, twice over

Foreign-language recordings are translated into Turkish through an interpreter under CMK 137/2 — that is the file's version of what you said. Separately, under CMK 202, where an accused or a victim does not know Turkish well enough to explain themselves, the essential points of the prosecution and the defence are translated through an interpreter appointed by the court; at the investigation stage, by the judge or prosecutor. Under CMK 202/4, on the reading of the indictment and on the prosecutor's final opinion, the accused may make an oral defence in another language in which they can express themselves better, using an interpreter chosen from the official list — and the cost of that interpreter is not met by the State Treasury.

The consulate

Under CMK 95/2, where the person apprehended or taken into custody is a foreign national, the consulate of their State is informed, unless they object in writing. Under CMK 95/1, a relative or a person they nominate is informed without delay on the prosecutor's order.

Leaving the country

Files built on intercepts run long. Under CMK 109/3-a, a prohibition on leaving the country is one of the judicial control obligations that can be imposed instead of remand. It can outlast the period a person planned to be in Türkiye by a wide margin, and it is a separate decision that has to be applied to be lifted.

Compensation

CMK 141 lists the situations in which material and non-material damage may be claimed from the State in connection with protective measures — unlawful apprehension or detention, not being brought before a judge within the lawful custody period, being detained without rights being explained, disproportionate search, seizure without the conditions being met, and others. Unlawful interception is not one of the listed heads. A claim arising from surveillance is therefore not a matter of ticking a box in Article 141, and should be assessed on its own terms rather than assumed.