Communication detection and interception (CMK art. 135) measure is applied in a significant part of drug investigations. This measure is a powerful tool that can be the backbone of the investigation when used correctly, and can refute the entire file when applied incorrectly.
Legal Conditions — CMK art.135
- Concrete presence of strong grounds for suspicion that a crime has been committed.
- Lack of possibility to obtain evidence in any other way (subsidiarity).
- Judge's decision (written order of the prosecutor if there is a risk of delay; judge's approval is required within 24 hours).
- The type of crime is a catalog crime (drug crimes are within the scope of the catalogue).
- Time limit: 2 months; 1 month extension if necessary; In special cases, in certain stages up to 4 years.
Detection / Listening / Recording — Discrimination
- Detection:Which numbers are registered to whom, which numbers are contacted.
- Listening: Live listening to conversations.
- Recording: Making audio recordings of the interviews.
Illegally Wiretapping
Interception made without a judge's decision, indecisively, or for crimes outside of CMK Art. 135 is unlawful evidence (CMK Art. 206/2-a, Art. 217/2). This evidence cannot be used in court; There can be no basis for a conviction.
Supreme Court 10th CD and CGK — Principle
CGK and the 10th CD require that the communication detection and interception measure be taken based on "strong grounds of suspicion"and with concrete justification, and that there be a separate and reasoned decision for each extension in the extension of periods; Records that do not comply with these conditions have no evidentiary value.
The "incidental evidence" problem
In accordance with CMK Article 138, evidence obtained regarding another crime within the scope of a catalog crime may be used during interception; However, evidence obtained for a crime outside the catalog cannot be used even by chance.
Examination from the Perspective of the Defendant and His Defense Counsel
Phone tapping may be decisive evidence in the file. Meticulous examination by an experienced criminal defense attorney is essential.