Assigning an undercover investigator (CMK article 139) is a common technique in drug investigations. However, this authority extends to the limit of persuading a person who will not commit a crime to commit a crime (entrapment); When this limit is exceeded, the evidence loses value.
CMK article 139 — Secret Investigator
- He may be assigned by judge's decision for certain serious crimes (drugs, terrorism, organized crime).
- His real identity is kept secret.
- Serves within a certain period of time; At the end, it prepares a report.
- The testimony of the undercover investigator may be taken with his/her identity concealed
What is "Provocative Incitement"?
It means that the undercover investigator induces a person who does not have the intention to commit a crime or who is not capable of committing a crime, to commit a crime by concrete guidance, suggestion, pressure or attraction. This situation:
- As a principle of the rule of law, it is prohibited.
- The evidence obtained is considered "unlawful" (CMK article 206/2-a).
- Cannot be the basis for conviction.
ECHR Teixeira de Castro/Portugal Decision (1998)
The ECHR found a violation of ECHR Article 6 (fair trial) in a Portuguese case where undercover police actively persuaded the defendant to obtain drugs. Built-in criteria:
If the role of the law enforcement is passive observation, the evidence is legal; The evidence is unlawful if it directed the defendant to commit a crime with active encouragement
Türkiye Practice — Supreme Court of Appeals CGK
CGK accepts that the evidence is legal if the undercover investigator receives a sales offer by "impersonating a user", but the evidence obtained cannot be evaluated in cases where the investigator "unlawfully provokes the defendant".
“Provocation or Passive Observation?” — Criteria
- Whether the defendant has been involved in drug dealing before (current profile).
- Reasonable grounds for suspicion before the investigation.
- Who initiated the relationship (defendant or investigator).
- The intensity of the investigator's guidance.
- Whether there is persistence despite the defendant's resistance.
- Promised advantage/offer size (promise of unusual profits, etc.).
Defense's Strategy
Practical Conclusion
Successful assertion of the provocation thesis collapses the evidence base of the file. However, this requires high technical care. Working with an experienced criminal defense attorney is a must.