A Quick Look at Search and Seizure Processes in Criminal Law for the Infringement of Industrial Property Rights

Counterfeiting and counterfeit products are a significant threat in many aspects to the world’s leading companies mainly operating in the consumer goods, stationery and office supplies, clothing, personal care, and cosmetic sectors. In addition to the legal aspect of commercial and criminal disputes, such as unfair competition and the infringement of industrial property rights, counterfeiting, depending on the product, can also threaten public health and is viewed as a serious unlawful act under criminal law in many countries, including Türkiye.

Within this context, the search and seizure process for counterfeit products is considered a crucial part of a criminal investigation carried out by public prosecutors in Türkiye. These investigations can be initiated through criminal complaints filed by companies who are threatened by counterfeiting.

The legal framework for the search and seizure process is set forth under Articles 116 to 134 of the Turkish Criminal Procedure Code No. 5271 . Any evidence seized during an investigation must strictly comply with the process listed under Code No. 5271 for such evidence to be used as legal evidence in the investigation and criminal lawsuit.

When filing a criminal complaint, the complainant must request that the public prosecutors conduct a search and seizure and provide supportive documents that will form the bases of the criminal complaint. Investigation and consultation companies that assist complainant companies commonly provide supporting documents such as a description of the location/s, suspect/s, and laboratory analysis reports of the counterfeit products upon request to be used in these criminal processes.

Upon the review of the criminal complaint, if the public prosecutor finds that reasonable doubt exists, then a request is filed for a search and seizure decision with the relevant Criminal Court of Peace.

Once a search and seizure decision has been obtained, law enforcement officers in the relevant location will execute the search and seizure once notified by the Public Prosecutor’s Office.

Search and seizure decisions can only be executed at a specific location with a specific address on a specific date and time, which must take place during the day rather than night. Violation of this can result in an unlawful search and seizure and evidence gathered through unlawful means cannot be used in the following procedures of the investigation and criminal legal proceedings.

If the owner of the search and seizure location refrains from handing over the requested suspected products, law enforcement officers can enforce disciplinary confinement. If counterfeit products are determined and seized during the search and seizure, law enforcement officers should be directed to a depositary determined by the complainant company’s attorneys beforehand to safely store the counterfeit products until end of the criminal proceedings.

In conclusion, it is fair to say that the search and seizure process has the potential to change the entire direction of criminal proceedings. Therefore, the attendance and legal supervision of attorneys during the proceedings is vital. At the end of the day, successful criminal proceedings prevent unfair competition amongst companies and the infringement of industrial property rights and help companies and countries fight counterfeiting and counterfeit products maintain a fair trading environment and a healthy public.