Shopping malls have become indispensable social spaces in our daily lives. However, security measures applied in these venues, especially interventions such as pat-down searches, require a delicate balance between individuals’ fundamental rights and the security needs of businesses. Security checks conducted at malls, such as pat-downs or screenings with X-ray machines, are performed for safety purposes. Nevertheless, there are important legal details regarding how these checks can be conducted within the framework of the law. Situations where individuals who refuse to give consent are denied entry raise significant legal questions.
1. Implied Rules and the Relationship Between Shopping Malls and Visitors
When entering a shopping mall, visitors do not sign a written contract; however, this does not legally prevent the establishment of an implied (tacit) agreement between the parties. From the perspective of contract law, it is accepted that there is a service contract between the mall operator and the visitor, which includes the rules the visitor must comply with during entry and use of the premises. This contract is particularly shaped by the rules and security procedures determined by the mall at the entrance. In other words, by entering the mall, the visitor is deemed to have consented to these rules and security measures. This consent is regarded as an implied acceptance of the contract. Consequently, requests for security checks such as pat-down searches arise as part of this implied agreement. However, the boundaries of this contract must be balanced with individuals’ fundamental rights and freedoms, avoiding excessive and arbitrary practices. Within this framework, the relationship between the mall and the visitor should be viewed as a service contract in which reasonable and proportionate security measures are accepted without infringing upon personal liberties.
2. Mall Security and the Constitutional Balance of Security: Rights and Limits
According to the Constitution, everyone’s right to privacy and bodily integrity must be upheld. A person’s body search counts as an intrusion into private life under constitutional law. However, in this situation, the search isn’t carried out by the government but by a private party, and it is based on consent. When there is no direct government intervention, these cases are seen as indirect violations of fundamental rights. Based on rulings by the Constitutional Court, if interference has a legitimate goal (such as security) and is proportionate, it is not considered a violation of rights.
Article 20 of the Constitution governs the protection of personal data and private life. This article imposes both a negative obligation on the state (non-intervention) and a positive obligation (protection against interference by private parties). Therefore, the state must establish certain limits on private security practices. The Criminal Procedure Code (CMK) states that searches can only be conducted under specific conditions and must serve judicial purposes. Private security personnel do not have “search authority” under the CMK.
Although spaces such as shopping malls appear to be open to the public, they are considered private property. Therefore, the business owner has the right to set their own rules (for example, denying entry to those who refuse security checks).
3. Can a Search Be Conducted by Force ?
A forced search can only be conducted by judicial law enforcement officers and, if necessary, with the prosecutor’s decision. In other words, private security personnel cannot forcibly search you. Mall security may refuse entry because you declined to be searched, but in this case, you either consent to the security or choose not to enter. Such incidents raise the debate of “security or privacy?” in society. Security personnel try to balance these two.
According to Article 26 of the Turkish Code of Obligations (TCO), freedom of will (freedom of contract) is essential for the formation of a contract between parties. This means the service provider (for example, the mall operator) has the right not to provide service to a person who does not comply with certain conditions. The mall operates its own private security protocol. Within this framework, it is free to require a security check for entry. If the visitor does not accept this condition, no contract is formed; therefore, “not providing service due to no contract formation” is lawful.
In summary; private security may conduct a search for preventive purposes, but this depends on the person’s consent. According to Article 7 of Law No. 5188; security checks can be performed in areas such as malls, but physical searches cannot be conducted without consent. According to Article 4/A of the Private Security Services Law (PVSK), police may stop a person, ask for identification, and search them if there is reasonable suspicion. Police may perform searches with judicial/public authority.
If mall security forcibly searches a person, this may be considered deprivation of liberty (Article 109 of the Turkish Penal Code – TPC) or interference with the confidentiality of private life (Article 134 TPC). Non-consensual physical contact may even be considered insult or simple bodily injury.
4. Private Security’s Request for a Search of Lawyers in Shopping Malls:
As explained above, private security personnel can legally only conduct checks with technical devices (X-Ray, metal detector). Explicit consent is required for a manual search. If there is no consent, coercion is unlawful. It should be noted that a shopping mall is not a public institution but private property. However, the professional status of the lawyer requires a more sensitive application regarding search requests. To illustrate, suppose the visitor entering the mall is a lawyer or trainee lawyer. They wish to enter the mall by showing their bar association ID but do not consent to being searched. The mall security claims that “the search is proportionate and reasonable.” As a result, the person is not allowed entry.
According to the Attorneyship Law, lawyers perform a public service and are one of the constitutive elements of the judiciary. This status provides certain privileges and protections to the lawyer as a person performing a public duty. Showing the bar association ID is a declaration of the person’s professional status. This status particularly brings privileges in institutional settings within the judiciary; however, its effect on private property is limited.
An implied service contract arises between the mall and the visitor. The mall has the right to determine its own entry conditions. However, this right cannot be exercised in a way that violates fundamental rights and freedoms. Even if the person is a lawyer, if they refuse the mall’s entry conditions, their admission is not mandatory. In practice, some malls exempt lawyers showing their bar association card from searches, but this is not a legal obligation; it is at the discretion of the business.
