In this context, principles such as “freedom of evidence” and the “system of discretionary evidence” have been adopted in our criminal procedure system. According to these principles, all types of evidence in a criminal case can be evaluated by the court. However, if the evidence in question is obtained through illegal means, it cannot be considered as a basis for the trial or deemed legally valid. Indeed, Article 38/6 of the Constitution, which stipulates that findings obtained unlawfully cannot be accepted as evidence, and Article 217/2 of the Code of Criminal Procedure, which states that “the alleged crime can be proven by all kinds of evidence obtained in accordance with the law,” make it clear that uncovering the material truth is only possible through legally obtained evidence. Therefore, revealing the material truth in a lawful manner necessitates the collection of evidence in compliance with the law.
Similarly, Article 206/2 of the Code of Criminal Procedure specifies the circumstances under which evidence intended to be presented may be rejected, stating that evidence obtained unlawfully must be rejected. As can be understood from this provision, the court is tasked with examining the legality of the evidence and excluding any evidence determined to have been obtained unlawfully from the trial. Although Article 38/6 of the Constitution and Article 217/2 of the Code of Criminal Procedure No. 5271 initially appear to be directed solely at judges, these rules are not limited to them. Prosecutors conducting investigations and law enforcement authorities are also subject to these rules. While the Constitution and legal provisions impose an obligation on judges not to evaluate or base judgments on illegal findings, they simultaneously require prosecutors and law enforcement to ensure that the evidence they collect is obtained lawfully.
The responsibility of proving that evidence has been collected lawfully rests with the authorities authorized to collect evidence. If these authorities fail to demonstrate the legality of the evidence or if it is not clearly understood from the case file that a piece of evidence was obtained in accordance with the law, such evidence must be deemed unlawful. This is critically important for ensuring a fair trial process.
An important issue related to the prohibition of evidence and unlawful evidence is the impact of such methods on evidence obtained indirectly. For example, if a suspect confesses to a crime under police torture and discloses the location of the weapon used in the crime, the admissibility of this weapon as evidence is questionable. In the Anglo-American legal system, such situations are referred to as the “fruit of the poisonous tree,” meaning that evidence obtained through unlawful methods renders other evidence derived from it invalid. Within this framework, the principle that “the fruit of the poisonous tree is also poisonous” applies. In Turkish law, however, the Court of Cassation takes a more complex approach to the indirect effects of unlawful evidence. Due to the absence of explicit regulation in criminal procedural law, the Court of Cassation evaluates each case individually. This leads to uncertainties in practice regarding how to handle unlawful evidence.
“…It was determined that there were no contradictions between the preparatory and court statements of the accused in the case in which they testified. The court found that the conversation between the accused and the complainant was secretly recorded on tape by the complainant, making it an unlawful piece of evidence that cannot be used as the basis for a verdict. Given that the court assessed the evidence and explained the reasons for the delay, the acquittal decision was deemed procedurally and legally appropriate. Therefore, the appeal objections of the complainant’s attorney, which were found groundless, were rejected…”
(Court of Cassation, 8th Criminal Chamber, 2009/9930 E., 2009/13934 K., 09.11.2009).
“…In the present case, following a report of gambling at the specified address, law enforcement officers arrived at the scene and entered the residence, which the accused claimed was his brother’s bachelor house. They seized the gambling materials that were the subject of the crime. However, since no legally issued search warrant was obtained from the competent authorities, and no legally valid, sufficient, and conclusive evidence beyond doubt was collected to prove that the accused committed the alleged crime apart from the unlawfully obtained evidence, the decision to convict the accused instead of acquitting him was deemed contrary to the law…”
(Court of Cassation, 8th Criminal Chamber, 2016/2625 E., 2017/744 K., 16.05.2019).
“…Although the alleged crime in the case concerned drug trafficking, it was not committed within the framework of organized criminal activity. According to Article 139/4 of the Code of Criminal Procedure No. 5271, in effect on the date of the crime, a covert investigator cannot be assigned for crimes that are not committed within the framework of organized criminal activity. Furthermore, as stipulated in Article 140 of the same Code, titled “Monitoring through Technical Devices,” there was no decision to monitor the accused using technical devices. It was established that monitoring, recording, and obtaining audio and video evidence were conducted based on the decision to assign a covert investigator, without a separate decision issued under Article 140 of the Code. Consequently, such evidence obtained in this manner is unlawful and cannot be used as the basis for a verdict…”
(Court of Cassation, 10th Criminal Chamber, 2023/5696 E., 2023/5507 K.).
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