Probative value of illegally obtained evidence in Criminal Procedure

The indispensable principles of Criminal Procedure Law which may directly intervene in the realm of freedom of an individual are the protection of the democratic constitutional state, right to a fair trial and protection of the rights and freedoms of individuals against government intervention. For purposes of proving whether a criminal action has been realized in the present case and if realized, who has committed the relevant criminal action and how, gathering, establishing, discussing and evaluating the evidence are the most important activities of criminal procedure law in terms of reaching the truth. The activities of obtaining and evaluating evidence shall be carried out by honoring the basic rights and freedoms of individuals in the restrictions governed by right to a fair trial and law. The state shall act in accordance with rules of law in the activity of gathering evidence as it should act in all other activities as well, and shall bound itself by these rules. In such a case basic rights and freedoms of individuals shall be secured. If illegal methods are applied for gathering evidence that establish the incidents causing crime, we will be face to face with illegally obtained evidence. As per the ways of solution adopted, illegally obtained evidence may be accepted to be used in the criminal procedure law or may be rejected. In the state of law, the regulations and practices on illegally obtained evidence are also important. In our thesis study, the issue of illegally obtained evidence is discussed under the scope of criminal procedure law with a particular focus on the provisions of Code of Criminal Procedure Law, views in doctrine, the reflections in the judgments of the Court of Appeal and the European Court of Human Rights and also the practices of some other countries have also been disclosed. The issue of illegally obtained evidence, which is an exception of the conscientious evidence system, is one of the most significant issues of today. The discussions on illegally obtained evidence that have been causing serious arguments and different points of views for a long time are still continuing and there is not a common consensus or practice accepted on using the illegally obtained evidence in the criminal procedures. In Turkish doctrine and in the practices of some other countries, there are different views and practices. The purpose of this study is to establish the solution suggestions in the state of law, try to determine the value of the illegally obtained evidence in terms of proving activity and its place in our law, and explain the outcomes of the suggestions brought and its impacts on other discussions. In this respect, general explanations regarding the purpose of the criminal procedure law, principles of rule of law and right to a fair trial which are the main principles of criminal procedure law, proof and evidence in criminal procedure law and gathering and evaluating the evidence have been given. In order to examine the illegally obtained evidence concept, the meaning and scope of the term illegality and illegally obtained evidence are clarified. Development of illegally obtained evidence in historical process and the provisions of Code of the Turkish Criminal Procedure Law have also been evaluated and some situations of illegally obtained evidence have been mentioned. We have also explained the xvii that if the evidence has been gathered illegally establishment of the evidence should be refused. As per the Article 217/2 titled "Judicial Discretion of Evidence" "the crime attributed can be proved by all kinds of evidence legally gathered". Furthermore, in the Code of Criminal Procedure No. 5271, a new clause not existing in the previous code has also been governed, as per the Article 289 of Code of Criminal Procedure, if a sentence depends on illegally obtained evidence, this should be an unconditional reason for overruling the subject sentence. Consequently, the lawmaker has adopted to accept everything as evidence in criminal procedure law provided that the subject evidences are gathered legally and permitted the consideration of legal evidence only. The evidence gathered by depending on a legal principle explicitly prohibiting a method of gathering, even if there is no explicit prohibition, the evidence gathered in contrary to a method governed in the principle or to the purpose and content of this principle or generally to the sources of law and to the international principles of law and the evidence committing a crime in terms of gathering method shall be considered illegally obtained evidence. The main problem in the criminal procedure is whether illegally obtained evidence shall be evaluated in the criminal procedure. There are different points of view in doctrine and in practices on whether illegally obtained evidence should be taken into consideration, in other words whether it should be used, in criminal procedure. In discussing the evaluation of illegally obtained evidence, the first issue to be explicated is why the illegally obtained evidences are prohibited and the purpose of bringing the rule of not using illegally obtained evidence. The main purpose in excluding illegally obtained evidence is accepted as protecting basic rights and freedom and honoring them, applying law and protecting the rule of law. The underlying idea of illegally obtained evidence theory shall be this purpose. There are three basic approaches in using the illegally obtained evidence in criminal process. Although left in contemporary criminal procedure, as per the absolute inclusion approach, the principle is that "İllegally obtained evidence is evaluated as if not being gathered illegally", therefore illegally gathered evidences are accepted to be the basis of a sentence/judgment. As per the absolute exclusion approach, illegally obtained evidence should not be used in criminal procedure in no ways. Within this scope, if there is a contradiction to law, all the evidences gathered illegally shall be invalid. Another approach is the flexible approach that does not accept a constant rule in using the illegally obtained evidence in criminal procedure. According to this approach, as a result of the evaluation to be carried out, illegally obtained evidence in some cases may be the basis of a sentence, but in some other cases it may not be applicable. Therefore, this approach grants a judicial discretion to the courts to be evaluated in each present case. No excuses should be made for illegality and qualifying illegal cases subjectively as important – unimportant, formal – material, light – heavy cannot be accepted in a state of law adopting the rule of law. By considering the purpose of excluding illegally obtained evidence and the inaccurate point of view and deficiencies in flexible approach under the principle of rule of law, all illegally obtained evidences should be taken into account as per the provisions in our criminal procedure law and illegally obtained evidence should not be used in any stages of criminal procedure in no case. Mainly, rule of law principle and right to a fair trial make this acceptance mandatory. xviii In different countries various practices have been adopted regarding availability of illegally obtained evidence. Some countries have governed illegally obtained evidence in their relevant codes whilst some others have shaped the issue in the light of court judgments. Although the approaches of different laws may vary in terms of illegally obtained evidence; generally, common characteristic of many systems are becoming evident on especially evidence gathered by means of mistreatment and torture. In this regard, together with the USA in the criminal procedure systems of England, France, Switzerland, Germany and Italy, the rules and practices regarding the consideration of illegally obtained evidence and practices carry some specialties. In today's world, the most impressive doctrine for the availability of illegally obtained evidence has been brought forward by ECHR. ECHR has developed a test deciding on the availability of illegally obtained evidence by considering whether benefitting from illegally obtained evidence causes a trial as a whole to become unfair and whether it is in contrary to Article 6 of European Convention of Human Rights, and by considering honoring the applicant's right of defense and the quality and importance of the subject evidence. In the meantime, ECHR has established principles for excluding evidence especially for the depositions taken as a result of torture, inhuman or degrading treatment by violating the right to remain silence and the right against self-incrimination or for the depositions taken in the absence of a lawyer. Notwithstanding, in the field of international criminal law, in a criminal trial carried out by the International Criminal Court, on the issue of whether the illegally obtained evidence shall be used, in Rome Statue, a special regulation has been accepted, including a subjective criteria. In Anglo-Saxon law, the distant action of the illegally obtained evidence named "fruits of a poisonous tree", in other words the consideration of the evidence gathered via illegally obtained evidence, is a question in dispute. In Turkish law, there is no such separation of direct and indirect; the important issue is whether there is a contradiction to law in the gathering method and the basis of evidence. Therefore, without taking into account whether the illegality is direct or indirect, it should be accepted that the subject evidence should not be used in any stages of a trial in no ways. Although whether illegally obtained evidence in favor of accused should be used is also a question in dispute, it should be necessary to accept in a state of law that even the evidence gathered illegally that might provide acquittal of the accused shall not be used in criminal procedure and shall not be the basis of a sentence. A number of different arguments have also been posited on the issue of whether the illegally obtained evidence gathered by private persons not having an official role should be used in criminal procedures. Although it is alleged that illegally obtained evidence gathered by private people may be used during trial, we are of the opinion that the evidence collected by illegal methods should not be used in criminal procedure. When it is determined upon request or by the judge ex officio that any evidence is illegal, it shall be excluded whilst consideration of evidence in criminal procedure. However, it is questionable whether this evidence should be removed from the court file. According to the relevant provisions in our criminal procedure law, although it is not possible to remove illegally obtained evidence from the file, it should be xix accepted that there is a need for an explicit criminal procedure rule that will provide the removal of the evidence from the file determined as illegal. The public prosecutor must take into consideration the rules and restrictions on proving activity whilst preparing indictment under the authorization of consideration of evidence. As per the current legislation, since illegally obtained evidence shall not be the basis of criminal procedure, preparing an indictment depending on illegally obtained evidence cannot be accepted. In such a situation, as an alternative suggestion of solution, the return of an indictment prepared depending on illegally obtained evidence shall be possible. Gathering evidence by illegal methods, in addition to its outcomes of not being able to use the subject evidence in criminal procedure and not being able to accept it as the basis of a sentence/judgment, may also cause a compensation act to be filed and the punishment of the person gathering the evidence if that behavior is also a crime. In order to prevent applying illegal methods whilst gathering evidence, compensation responsibility and penal sanctions have further importance