Unlawful Evidence and Proof: An Assessment of the Court of Cassation's Decisions of 2020

Murat Volkan Dülger^* / Onur Özkan^**

Introduction

The fundamental aim of the law of criminal procedure is to arrive at the material truth¹. Arriving at the material truth requires the activity of proof to be carried out, and this activity can be conducted by means of proof.

How proof is to be achieved and whether the means of proof are suited to establishing a material fact constitute one of the fundamental problems of criminal procedure. An attempt is made to resolve these problems through the rules of the law of evidence. The fundamental principle of the law of evidence, in turn, is the requirement that this activity be conducted in conformity with human dignity and the right to a fair trial². Criminal procedure aims at the protection of the innocent just as much as at the conviction of the guilty. Consequently, a conception according to which the material truth must be reached “at whatever cost” cannot be accepted; on the contrary, it is the law that must be complied with “at whatever cost”.

The main subject of this study is the assessment of a selection of the decisions on unlawfully obtained evidence and proof delivered in 2020 by the General Criminal Assembly of the Court of Cassation and by various criminal chambers, and the manner in which the rules of the law of evidence have been put into practice. The motivation for our study, for its part, is to examine, looking back over the past year, whether the distinction between “absolute – relative unlawfulness”, which we have had the opportunity to criticise on various occasions and which has no basis whatsoever in the legal order yet has found a place in judicial decisions, is still being followed. In keeping with this aim, in the first part of our article we shall seek to establish a general framework by explaining the theory of unlawfully obtained evidence and the provisions of our current legal system, and in the second part we shall present various decisions of the Court of Cassation and offer our assessments of them.

I. The Theory of Unlawfully Obtained Evidence and Its Place in the Turkish Legal System

Unlawfully obtained evidence is one of the most highly contested topics of the law of criminal procedure and, at the same time, one that never loses its topicality. Numerous principles have been put forward in this field, and there are differing rules which a large number of legal systems have adopted in accordance with the different policies of criminal procedure they pursue. In Turkish criminal procedure law, unlawfully obtained evidence is subject to an absolute prohibition on evaluation.

Indeed, this has been given constitutional protection by Article 38(6) of the Constitution, which provides: “Findings obtained in violation of the law may not be accepted as evidence.” In addition, when the relevant provisions of the Code of Criminal Procedure No. 5271 (CMK) are examined, it is seen that the provisions of

• Art. 206(2)(a): “Where an item of evidence whose production is requested has been obtained in violation of the law, it shall be rejected”

• Art. 217(2): “The offence charged may be proved by any kind of evidence obtained in a lawful manner”

• Art. 230(1)(b), according to which the reasoning of a judgment of conviction must contain “the discussion and evaluation of the evidence, the indication of the evidence relied on for the judgment and of the evidence rejected; and, in this context, the separate and express indication of the evidence obtained by unlawful methods that is contained in the file”

• Art. 289(1)(i): where “the judgment is based on evidence obtained by unlawful methods”, “even if it has not been indicated in the petition or statement of appeal on points of law… a definite violation of the law shall be deemed to exist.”

have been laid down, and it has thereby been made clear both that unlawfully obtained evidence falls within the prohibition on evaluation and that it may not be taken as the basis for the judgment and that, if it is, this will constitute a case of definite violation of the law. Although our subject concerns criminal proceedings, in the Code of Civil Procedure No. 6100 the fact that unlawfully obtained evidence cannot be a means of proof is expressly and specifically regulated for civil proceedings as well, by paragraph 2 of Article 189, entitled “Right to proof”: “Evidence that has been obtained unlawfully may not be taken into account by the court in proving a fact.”

Although the essential aim of criminal proceedings is to arrive at the material truth and although the systems of freedom of evidence and of conscientious conviction have been adopted, the fact that unlawfully obtained evidence falls under an absolute prohibition on evaluation is a consequence of the principles of respect for human rights and legal certainty. The General Criminal Assembly of the Court of Cassation also emphasises this point in its decision of 19.12.2017, E. 2017/4 - 291, K. 2017/558, in the following words: “In criminal procedure there is no restriction as to the evidence by which a matter is to be proved; the trial judge must, using evidence obtained in a lawful manner, inquire into and evaluate the evidence in favour of the accused as much as that against him and reach a conclusion free from any doubt. Accordingly, every means used for the purpose of proof in order to clarify the event forming the subject of the trial and to find the material truth is accepted as evidence. However, the material truth must be sought not at whatever cost, but within the rules of law and with the rights of the suspect and the accused being protected.”³

II. Assessment of the Decisions Delivered by the Court of Cassation

1. Decisions Concerning Unlawfully Obtained Evidence

• Unlawfully obtained evidence – failure to obtain a search warrant in due form (20th Criminal Chamber, E. 2019/1945, K. 2020/4266 T. 13.7.2020): “In the present case, it is understood that the accused was placed under physical surveillance because, as a result of the telephone tapping carried out pursuant to an interception order, it was considered that he would sell narcotics; that he was seen meeting the other accused ... and exchanging something with him, and the other accused ... was seen trying to hide the piece of white paper in his hand furtively in his pocket; that, once it had been established that the other accused ... had entered the internet café named ...Net, the officers went to the premises; that there were customers in the internet café but, as a strong smell of cannabis was coming from it, the officers wished to check the lower floor; that ..., in respect of whom a treatment and probation order had been made for the offence of possessing narcotics for personal use, tried to obstruct the police officers but, as the smell of cannabis persisted, the officers went down to the lower floor; and that on the lower floor the other accused ... was found together with a plastic bottle used for smoking cannabis and, beside it, a net 0.25 grams of cannabis. That being so, having regard to the provision of Article 119 of the CMK, according to which "Law enforcement officers may conduct a search upon the decision of a judge or, in cases where delay would be prejudicial, upon the written order of the public prosecutor or,

where the public prosecutor cannot be reached, upon the written order of the law enforcement superior. However, a search in a dwelling, at business premises and in enclosed areas not open to the public may be conducted upon the decision of a judge or, in cases where delay would be prejudicial, upon the written order of the public prosecutor. The results of a search conducted upon the written order of the law enforcement superior shall be notified to the Chief Public Prosecutor’s Office without delay.", and bearing in mind that under this provision a search at business premises may be conducted upon the decision of a judge or, in cases where delay would be prejudicial, upon the written order of the public prosecutor, it ought to have been ascertained whether there was a "judicial search warrant" or a “written judicial search order” obtained in accordance with Articles 116, 117 and 119 of the CMK, and the legal position of the accused ought to have been assessed and determined according to the outcome; the delivery of the judgment as written, on the basis of an incomplete inquiry,

When the decision is assessed, it is seen first of all that there was an order for the interception of communications (CMK Art. 135) in respect of the accused which, there being no allegation to the contrary, appears to have been obtained in due form, and that as a result of this interception a reasonable suspicion was arrived at that the accused would sell narcotics, in other words that he would commit the offence of manufacturing and trafficking narcotic or stimulant substances (Turkish Criminal Code (TCK) Art. 188).

Thereupon, it is understood, the accused was placed under “physical surveillance”. Physical surveillance is a classic method of obtaining evidence and may be defined as the judicial police seeking to reach evidence and perpetrators by observing a person’s conduct in areas open to the public without making any recording. It should be noted that, although the concept of physical surveillance is frequently used in practice, it is not regulated in the CMK or in other legislation. Nevertheless, unless conduct infringing the person’s privacy is engaged in, the use of this method of obtaining evidence does not in itself constitute unlawfulness. Nor is there any need to obtain a decision of a judge or prosecutor in order for physical surveillance to be carried out. Following the physical surveillance, it was established by the judicial police officers that “(the accused) was seen meeting the other accused ... and exchanging something with him, and the other accused ... was seen trying to hide the piece of white paper in his hand furtively in his pocket, and the other accused ... entered the internet café named ...Net”. It was at this stage that the business premises were entered and, as a smell of cannabis was coming from below, the officers went down to the lower floor, where a plastic bottle used for smoking cannabis and 0.25 grams of cannabis belonging to the accused persons were found. It is thus understood that from this stage onwards the surveillance turned into a search and seizure operation.

The Court of Cassation rightly stated that it should have been ascertained whether there was a judicial search warrant obtained in accordance with Articles 116, 117 and 119 of the CMK and that the legal position of the accused should have been assessed and determined according to the outcome, and it ordered that the judgment be quashed on the ground that a conviction had been delivered on the basis of an incomplete inquiry.

For the operation carried out by the judicial police is in the nature of a search and seizure. Even though there is no unlawfulness in either the physical surveillance or the interception orders, search and seizure operations cannot be carried out on the strength of a suspicion of crime arrived at on the basis of these coercive measures alone. First of all, since the search took place at business premises, it is understood that the matter falls within the scope of Article 119 of the CMK. Pursuant to the relevant provision of Article 119(1);

“Law enforcement officers may conduct a search upon the decision of a judge or, in cases where delay would be prejudicial, upon the written order of the public prosecutor or, where the public prosecutor cannot be reached, upon the written order of the law enforcement superior. However, a search in a dwelling, at business premises and in enclosed areas

not open to the public may be conducted upon the decision of a judge or, in cases where delay would be prejudicial,

upon the written order of the public prosecutor. The results of a search conducted upon the written order of the law enforcement superior shall be notified to the Chief Public Prosecutor’s Office without delay.”

Accordingly, in order for a search to be conducted at business premises, a judge’s decision is required as a rule and, where there is a case in which delay would be prejudicial, the written order of the public prosecutor. Although it may be accepted that in the present case there was a situation in which delay would be prejudicial, no written order obtained from the public prosecutor is to be found. While there is nothing unlawful in the apprehension of suspects/accused persons as a result of physical surveillance that turns into hot pursuit, a decision issued in due form is mandatory for search and seizure. The fact that the event developed suddenly does not remove this requirement.

In conclusion, in cases where there is no search and seizure decision obtained in due form, the evidence obtained and seized as a result of the search is unlawful. Such evidence is subject to an absolute prohibition on evaluation, and the position of the accused must be assessed as though the evidence in question had never been obtained.

• Remote effect of unlawfully obtained evidence – tax technique reports and tax inspection reports

drawn up on the basis of documents obtained through an unlawful search

are likewise unlawful (11th Criminal Chamber, 2.6.2020, E. 2018/708, K. 2020/2602): “If the evidence in the file obtained by unlawful methods is left out of account, there is no possibility of punishing the accused. Although the tax offence report and the entire contents of the file were indicated among the essential evidence set out in the reasoned judgment and were taken as the basis for the conviction, tax technique reports and tax inspection reports drawn up by acting on evidence obtained as a result of a search and seizure contrary to the provisions of the Tax Procedure Law (VUK), and therefore unlawful, cannot be taken as the basis for a conviction. Accordingly, as regards the searches unlawfully carried out in the house where the accused’s family resides and in the vehicle used by the accused,

the delivery of a conviction as written, on the basis of the physical evidence obtained in those operations and of the inspection reports drawn up in reliance on it, is contrary to law.”

This decision, in turn, is important in that it illustrates the remote effect of unlawfully obtained evidence (the fruit of the poisonous tree doctrine). The remote effect of unlawfully obtained evidence means that, even though it has been established that an item of evidence was obtained unlawfully and that item is not used in the proceedings, another item of evidence obtained by starting out from it, but this time by lawful methods, may not be used in the proceedings either. For “the fruit of the poisonous tree is also poisonous”⁴.

When the decision is assessed, it is seen that in the reasoned judgment of the local court the tax offence report, the tax technique report and the tax inspection report were also indicated among the essential evidence and taken as the basis for the conviction. Criminal proceedings concerning a tax offence generally arise on the occasion of a tax inspection that is already under way. If, in this inspection conducted by tax inspectors, a suspicion arises that, in addition to a breach of tax duties, an offence has also been committed, a “tax offence report” must be drawn up alongside the tax inspection report. This report is a condition of proceedings/prosecution (VUK Art. 367). When the case is examined, it is understood that there was no unlawfulness as regards the drawing up of the reports in question either. Nevertheless, the evidence on which the report was based was obtained by unlawful methods. The searches carried out in the house where the accused’s family resides and in the vehicle used by the accused are unlawful. Not only may the evidence obtained from this unlawful search not itself be used in the proceedings; by virtue of the remote effect of unlawfully obtained evidence, no report may be drawn up on the basis of that evidence either. And taking the report so drawn up as the basis for the conviction is, as the Court of Cassation also rightly found, unlawful and calls for the judgment to be quashed.

• Unlawfully obtained evidence – unauthorised audio recordings that were not made in a suddenly arising situation

and of which it cannot be said that there was no possibility of obtaining them again may not be taken as the basis

for a conviction (4th Criminal Chamber, 8.1.2020, E. 2019/7943, K. 2020/454): “When the contents of the file, the request for quashing in the interest of the law and all these explanations are considered together: first of all, it must be assessed whether the audio recording made by the intervening party falls within the scope of lawful evidence.

In the present case, it is understood that, after ...ü, the mother of the child drawn into crime, had allegedly driven a vehicle at the intervening party ..., the conversation forming the subject of the allegation took place between the child drawn into crime and the child’s mother, within the hearing of the intervening party, in which the words '...drive the car at them, I wish you had crushed their foot...' were addressed to ...; and that, following this conversation, the intervening party, according to the content of the intervening party’s own statement, went to the home of the child drawn into crime and the child’s family and there recorded the conversation held with the child drawn into crime. Given that the alleged conversation took place after the incident, likewise alleged, of a vehicle being driven at the intervening party, and in view of the intervening party’s declaration in the statement to the public prosecutor’s office dated 07.09.2017, "...after that I went to their home... as I had no witness, I made an audio recording...", it has been established that the audio recording was made not upon a telephone call made by chance or in a chance encounter, in a situation that could not be proved in any other way, but as part of a plan; and that, without it being borne in mind that the recording in question was therefore in the nature of prohibited evidence, judgment was delivered as written in reliance on this prohibited evidence as well.

If it is assumed for a moment that the audio recording in question is not in the nature of prohibited evidence and the present case is examined on that basis: although it is stated in the account given in the indictment and in the findings of the Court that the child drawn into crime uttered the words forming the subject of the allegation while the vehicle was in motion, it is understood from the entire contents of the file that the words in question were uttered after the alleged incident and were not directed at a harm likely to be inflicted in the future, so that the statutory elements of the offence of threat were not made out.”

In criminal proceedings it is frequently the case that a person obtains by his or her own hand, and makes use of, evidence that is at risk of being lost and that relates to an offence which that person believes has been committed against him or her. Although the unauthorised recording of evidence that arises suddenly and cannot be obtained again infringes the privacy of the persons concerned, whether such evidence may be used in the proceedings is a separate and very wide field of debate. While the scope of our study does not allow us to address all the debates and issues in this field, we include the above decision in our article in order to explain the practice on this point and a number of criteria applied in that practice.

Although the matter is contentious and views to the contrary may be advanced, the practice of the Court of Cassation regards evidence that arises suddenly and cannot be obtained again as lawful⁵. As for the acts involved in obtaining such evidence, in the form of unauthorised audio or video recording, which in themselves constitute an offence, these are lawful within the scope of self-defence, according to the Court. The criteria applied here are the existence of a suddenly arising situation in which there is no possibility of applying to the competent authorities, and the absence of any possibility of obtaining that evidence again. In order for these criteria to be applied, matters such as where and when the offence was committed and in what period of time and how many times the audio or video recordings were made must be assessed.

When the decision is assessed, it is seen that it was first established that the audio recording had been made without permission and that the criteria were then applied to the dispute at hand, with the finding that the recording had been made as part of a plan. Although it cannot be gathered from the decision exactly how the audio recording was made, it is understood that there were verbal exchanges between the intervening party and the child drawn into crime (SSÇ) and the child’s mother, that the accident then occurred, and that following the accident the intervening party secretly entered the home of the SSÇ and the mother and made this recording. The intervening party gave the absence of a witness as the reason for this. However, the claim that there was no witness cannot be put forward as justification for secretly entering the home and recording certain words which the SSÇ addressed not directly to the intervening party but to the mother. It is for this reason that the Court of Cassation ruled that the recording was made not in the face of an event occurring suddenly and by chance, but in a planned manner. Independently of this, in its assessment of the elements of the offence, it also finds that the words cannot be regarded as falling within the offence of threat, since the words “...drive the car at them, I wish you had crushed their foot...” are not directed at a harm likely to occur in the future.

• For an undercover investigator to be deployed and the evidence obtained from this measure to be used,

there must be a written or oral judicial police assignment to that effect; unlawfully

obtained evidence, evaluation of evidence (18th Criminal Chamber, 11.6.2020, E. 2020/625, K. 2020/7048): “The case concerns the offence of prostitution. In the present case, it is understood that, without any written or oral assignment having been made by the public prosecutor under Articles 160 et seq. of the Code of Criminal Procedure (CMK), the police officer who signed the report went to the massage parlour upon a tip-off; that there, at the direction of the accused, he was shown into a room; that, after he and the victim who came to the room had reached an agreement on prostitution, the law enforcement officer disclosed his identity just as the victim was beginning to undress; and that the Public Prosecutor’s Office was then informed so that proceedings could be taken against the accused, and the other steps were carried out. Although a public action was brought seeking the punishment of the accused for the offence of prostitution and it was decided that the accused be punished for this act, in the absence of any evidence obtained by means of a judicial police assignment for an undercover investigation in conformity with the principles set out above, and without the judgment discussing what the evidence consists of that shows the accused to have committed the offence of prostitution without the intervention of law enforcement officers and in what manner the accused committed the offence, and without any legal characterisation of the accused’s act being made either,

the delivery of a conviction on the mere acceptance of the incident, without any reasons being given, is a ground for quashing.”

As is well known, as a method of obtaining evidence, in investigations concerning the catalogue offences listed in CMK Art. 139(7) a public official may be assigned as an undercover investigator, with his or her identity being changed if necessary, and the evidence obtained by this investigation may be used in criminal proceedings. The undercover investigator may be assigned by a judge.

When the first decision is examined, it is understood that, in an investigation into the offence of prostitution that began with a tip-off, the law enforcement officer went to the massage parlour concerned with the aim of obtaining evidence. It is understood that he was subsequently shown into a room at the direction of the accused; that, after he and the victim who came to the room had reached an agreement on prostitution, the law enforcement officer disclosed his identity just as the victim was beginning to undress; and that thereafter the Public Prosecutor’s Office was informed so that proceedings could be taken against the accused, and the other steps were carried out.

The law enforcement officer “probably” did not know that his acts could be carried out only by means of the measure of the undercover investigator. The undercover investigator is a measure that may be resorted to even without the person’s identity details (first name or surname) being changed. What makes an operation an undercover investigator measure is that inquiries are secretly made into the offences under investigation and the evidence is gathered, without contributing in any way to the commission of an offence (agent provocateur). Whether or not the law enforcement officer was aware of it, his acts of going to the scene of the offence in order to inquire whether the offence of prostitution was being committed, establishing the evidence and apprehending the accused could be carried out only once an order for this measure had been obtained. Here the Court of Cassation rightly held that, since there was no decision assigning the law enforcement officer concerned as an undercover investigator, the evidence obtained from this measure was unlawful and had to be excluded. This decision also shows that prosecutor–police cooperation and hierarchy are of very great importance at the investigation stage. For law enforcement must not embark on investigative acts without sharing information with the prosecutor and without obtaining a decision which, where necessary, can be given by the prosecutor (CMK Arts. 160, 161) or submitted by the prosecutor to the judge. Otherwise, it is highly probable that the relevant provisions of the CMK will not be complied with and that the evidence obtained will be unlawful and unusable in the proceedings.

• An undercover investigator decision not issued in due form, and resort to the measure of

surveillance by technical means on the basis of an undercover investigator decision, are

unlawful (20th Criminal Chamber, 2.6.2020, E. 2019/6246, K. 2020/2331): “It is understood from the contents of the file that, although the offence forming the subject of the case is the offence of trafficking in narcotics, it is not an offence committed within the framework of the activities of an organisation;

that, under Article 139(4) of the CMK, an undercover investigator cannot be assigned in respect of offences not committed within the framework of the activities of an organisation; and, further, that, having regard to the provision of Article 140 of the CMK, entitled "Surveillance by Technical Means", there was no decision on the surveillance of the accused by technical means, and surveillance by technical means and video and audio recording were carried out in reliance on the decision assigning an undercover investigator and without a separate decision being obtained under Article 140 of the CMK. The court based its finding that the offence was proved on the records obtained as a result of the undercover investigator’s activities and the surveillance by technical means, and on the confession of the accused. Under Article 217 of the CMK, the offence with which the accused are charged may be proved by any kind of evidence obtained in a lawful manner. It is not possible to find the offence proved in reliance on evidence obtained as a result of unlawful surveillance by technical means.”

When the second decision on the assignment of an undercover investigator is examined, it is likewise seen that an assignment was made in an investigation that did not fall within the offences for which an undercover investigator may be assigned. As a rule, an undercover investigator may be assigned in respect of organised crime, and in the dispute at hand the offence of trafficking in narcotics was not committed within the framework of the activities of an organisation. Accordingly, the assignment decision made in respect of that offence and the evidence obtained from this measure are unlawful.

It must be noted, however, that Art. 139(7) of the CMK, concerning the catalogue offences, was amended by Article 27 of Law No. 6763 of 24/11/2016, which provided that an undercover investigator may be assigned in respect of the offences of manufacturing and trafficking narcotics regardless of whether they were committed within the framework of the activities of an organisation. Consequently, in decisions assigning an undercover investigator issued after that date, the fact that the offence of drug trafficking was not committed within the framework of an organisation does not constitute unlawfulness.

The second point we must address with regard to the decision is that surveillance by technical means and video and audio recording were carried out in reliance on the decision assigning an undercover investigator. It is mandatory to obtain a separate decision for each coercive measure whose application is sought. Otherwise, the evidence obtained from it cannot be used in criminal proceedings either.

• Failure to have search witnesses present – the need to decide after excluding unlawfully obtained evidence (14th Criminal Chamber, 10.3.2020, E. 2020/436, K. 2020/1867): “Since, in the searches conducted by law enforcement forces at the accused’s residence without the public prosecutor being present, the failure to have two persons from the local council of elders or from among the neighbours in attendance constitutes a manifest breach of Article 119 of the CMK No. 5271, the evidence obtained as a result of that operation is unlawful and, under Article

217(2) of the same Code, cannot be taken by the court as the basis for the judgment; having regard to this, it is understood that the conviction was not well founded, there being no certain and convincing evidence, free from any doubt, sufficient for the accused to be punished for having committed the offence of obscenity ( 226/3 ); accordingly, the dismissal on the merits of the appeal on facts and law lodged against the said judgment, instead of its being allowed, is contrary to law.”

Lastly, the decision deals with unlawfulness relating to search witnesses. It is known that the Court of Cassation delivered “contradictory and changeable” decisions on search witnesses, but that, following the Constitutional Court’s judgment finding a violation⁶, the General Criminal Assembly moved away from its earlier case law⁷, changed course⁸ and held that the operation and the evidence obtained were unlawful⁹. In line with the explanations we gave above concerning searches, in searches to be conducted in a dwelling, at business premises and in enclosed areas not open to the public, as a rule the public prosecutor must, pursuant to CMK Art. 119(4), be present at the place concerned and supervise the search – something we hardly ever witness in practice; if the public prosecutor is not present, two persons from the local council of elders or from among the neighbours must be in attendance.

When the decision is examined, it is understood that the provisions on search witnesses were not complied with. The consequence of failing to comply with a procedural requirement when carrying out a search or any other coercive measure is unlawfulness. Unlawfulness cannot be subjected to a distinction between “serious and minor” or “absolute and relative”, and the theories that assess the gravity of the right infringed have no validity in our law. The task of the courts, for their part, is to apply the laws in force in the country. Should these laws lead to failure in attaining the intended objective, it is the task of the legislature to amend them and bring them into line with that objective. The court has no power to alter the principles and rules laid down in the statutes concerning the evaluation of evidence. Consequently, when the provisions of the Constitution and the CMK are so clear, interpreting them differently in legal scholarship and in practice, and importing into our country the scholarship and practice of countries whose systems do not resemble ours by drawing comparisons with them, is manifestly contrary both to the statutory provisions and to the law¹⁰. It is seen that the Court of Cassation has now also taken this path and consistently regards the search and the evidence obtained from it as unlawful and excludes them where search witnesses were not present.

2. Decisions Concerning Failure to Comply with the Fundamental Principles of the Law of Evidence

• Error in proof and in the evaluation of evidence – bare confession (10th Criminal Chamber, 30.6.2020, E. 2020/535, K. 2020/2694): “Since no narcotic or stimulant substance was found on the accused, it was not established by technical methods that he had used narcotics on or before the date of the offence, and the substances which he declared, by his own confession, that he had used were not seized, so that their nature could not be determined, the decision to convict the accused instead of acquitting him, there being no sufficient and certain evidence, free from any doubt, that he committed the offence charged, is contrary to law; and as this matter is in the nature of absolute unlawfulness going beyond the Court’s discretion and a mere error in the evaluation of the evidence, the judgment had to be quashed.”

Just as much as the exclusionary rules, the principles and rules governing the evaluation of evidence and the attainment of proof are foremost among the matters to which attention must be paid when assessing and determining the legal position of the accused.

In this decision too, it is expressly stated that a conviction cannot be based on the own confession of a person on whom no narcotic or stimulant substance was found and whose use of narcotics on or before the date of the offence could not be established in any way.

In our system of criminal procedure law, a “bare confession” has no value in itself. For a confession to be usable as a means of proof, it will have to be supported by other evidence. It therefore cannot on its own be taken as the basis for a conviction. At this point one might think of the case in which the confession is supported by evidence but that evidence is unlawful. It must be stated that, where evidence has been obtained by unlawful methods, it cannot be used in the proceedings even if there is a confession; and the confession, too, cannot be taken as the basis for a conviction unless it is supported by other, lawful evidence¹¹.

• Proof – evaluation of evidence and reasoning – a conviction may not be delivered in generalised terms (6th Criminal Chamber, 9.3.2020, E. 2019/2358, K. 2020/1173): “The case concerns the offence of

robbery. The delivery of a conviction for the offence of robbery as written, on reasoning that is neither apt nor sufficient and in generalised terms, without the judgment explaining and discussing, in a manner permitting review by the Court of Cassation, what the certain and convincing evidence sufficient for a conviction consists of that shows that the accused knew in advance of the act of robbery to be carried out by the other accused and/or assisted them before or after the event and strengthened their resolve to carry out the act in question and/or acted in concert and cooperation with them, is a ground for quashing.”

Proof and the evaluation of evidence are also important for the formation of the conscientious conviction and for the giving of reasons. Both under CMK Art. 230 and under the right to a reasoned decision (Constitution Art. 141(3), CMK Art. 34), which is an extension of the right to a fair trial, the facts of the case must be set out, the evidence must be evaluated and discussed, it must be stated which items of evidence were given precedence before proceeding to the legal assessment of the factual issue, and the judgment must be reasoned in this way¹². Delivering a conviction in “generalised” terms is unlawful and calls for the judgment to be quashed.

• Failure to discuss the evidence in the presence of the accused (16th Criminal Chamber, 4.3.2020, E. 2019/4536, K. 2020/1712 T.): “The case concerns the offence of membership of an armed terrorist organisation. The necessity, in order to establish whether the accused deposited money in the bank affiliated with the organisation on the instructions of the leader of the organisation, of bringing into the file the accused’s account transactions at the bank in question and, if any, at other banks, covering also the dates before and after the instruction, and of assessing and determining the accused’s legal position after obtaining, if necessary, an expert report on the account transactions; the delivery of a decision on the basis of an incomplete inquiry, without resolving the contradictions in the account given at the various stages by the witness relied on for the judgment as to how the telephone number of the person alleged to have held a senior position in the FETÖ/PDY armed terrorist organisation was obtained, and without hearing as a witness the person named in the witness’s statement; the delivery of judgment on the basis of an incomplete examination, without establishing whether those persons had made any statement concerning this accused, whereas, having regard to the fact that the accused’s spouse had made a statement relating to the merits of the case, the spouse ought to have been heard as a witness at the hearing, it ought to have been ascertained whether there was any investigation or prosecution against the spouse and the other persons named, and the dates of any organisational meetings held ought to have been established; the failure to bear in mind that the document contained in the university Investigation Commission’s investigation report, drawn up after the date of the indictment,

concerning a donation made to the Association in question, could not, pursuant to Article 217 of the CMK, be taken as the basis for the judgment without being discussed at the hearing in the presence of the accused; and the failure to bear in mind that, in respect of the accused who was found to be a member of the organisation, the provisions on recidivism were to be applied solely under Article 58(9) of the Turkish Criminal Code (TCK), have necessitated quashing.”

The principle of the commonality of evidence is a requirement of adversarial proceedings. Pursuant to CMK Art. 217(1);

“The judge may base his decision only on evidence that has been brought to the hearing and discussed in his presence. This evidence shall be freely assessed according to the judge’s conscientious conviction.”

Likewise, this matter is expressly regulated in Article 6 of the European Convention on Human Rights, entitled right to a fair trial;

“Everyone charged with a criminal offence has the following minimum rights: d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” (ECHR Art. 6(3)(d)).

When the decision is examined, in turn, it is seen that, in the case of the accused tried on a charge of membership of an armed terrorist organisation, the document concerning a donation made to the association in question, contained in the investigation report of the University Investigation Commission prepared after the indictment drawn up against him, was not discussed at the hearing in the presence of the accused as required by Article 217 of the CMK. As is also stated in the decision of the Court of Cassation, a conviction cannot be based on evidence that has not been discussed in the presence of the accused.

Conclusion

In recent years the Court of Cassation has been far stricter on the question of unlawfully obtained evidence and has shown considerably less flexibility than in the past. Even in the case of offences carrying very heavy penalties, it excludes evidence obtained unlawfully by prohibited methods and, in cases in which convictions used to be upheld without difficulty, it now quashes the judgments on the merits because prohibited evidence has been used. Frankly, this is a gratifying development for authors who, like us, advocate the theory of a strict exclusionary rule. It is, moreover, also gratifying from the standpoint of criminal law practice in our country. For both our Constitution and our statutes are in any case framed, by their very structure, so as to contain a strict exclusionary rule. With this practice, therefore, the Court of Cassation has begun to adopt a stance consistent with the letter and spirit of the CMK.

From the standpoint of the policy of criminal procedure, evidence obtained by unlawful methods, other evidence obtained by means of that unlawful evidence, and the instruments of evidentiary assessment produced on that basis (expert report, tax offence report, summary investigation report, etc.) must not be used at any stage of the proceedings, and it must be expressly stated that they have been excluded. Otherwise, the right to a fair trial, human dignity, depending on the method by which the evidence was obtained, and the rule on the exclusion of unlawfully obtained evidence, which is subject to an absolute prohibition on evaluation, will have been violated. Likewise, in the evaluation of evidence the principles of the law of evidence must be observed, reason, logic and scientific rules must be followed in forming the conscientious conviction, and the right to a reasoned decision, which constitutes the system’s most important safeguard against arbitrariness, must be ensured.

In addition, as we have stated on several previous occasions, the theories that lend legitimacy to the use of such evidence in one way or another, namely those assessing the degree of unlawfulness or the gravity of the right infringed, have no validity in our law¹³. In a State bound by law, the end can never justify the means or render them lawful, and there can be no excuse for acting unlawfully. The court has no power to alter the principles and rules laid down in the statutes concerning the evaluation of evidence. In this sense, it is clear that the distinction between “absolute unlawfulness” and “relative unlawfulness” can find no place either in positive law, given the extremely clear provisions of the Constitution and the CMK, or in ideal law. In this article, in which we have examined some of the Court of Cassation’s decisions from 2020, we are very pleased to see that this “artificial and baseless distinction” has now been abandoned.