CMK Article 206/2-a and Article 217/2 regulate that evidence obtained illegally cannot be used in trial. This principle is called "evidence ban" and is one of the fundamental guarantees of the right to a fair trial.
Legal Basis
- Constitution Article 38/6: "Findings obtained illegally cannot be accepted as evidence."
- CMK article 206/2-a: "If the evidence is obtained illegally, it is rejected."
- CMK article 217/2: "The charged crime can only be proven with all kinds of evidence obtained in accordance with the law."
- ECHR article 6: Right to a fair trial.
Types of Illegal Evidence
- Interception without a judge's decision (Violation of CMK Article 135).
- Unauthorized search (Violation of CMK art. 116-119).
- The judge is undecided about looking for housing.
- The statement taken without a defense attorney (in compulsory defense).
- A statement taken under torture/force.
- Criminal evidence obtained "by chance" but not catalogued.
- Evidence from expired injunction.
“Fruit of the Poisonous Tree” — Derivative Evidence
- The "secondary evidence" obtained from illegal evidence is controversial.
- The "independent source" doctrine: evidence can be used if it can be found through other means.
- The doctrine of "inevitable discovery": can be used if evidence would have been discovered anyway
- The Turkish judiciary applies these doctrines gradually.
Supreme Court CGK and Chambers — Established Approach
CGK and the chambers balance the gravity of the contradiction, good faith, and the interest of protecting the legal order in the evaluation of "illegal evidence". Absolute prohibition of serious procedural violations (e.g., deposition under torture); Flexible evaluation can be made in case of minor structural problems.
"Reasons for Compliance with the Law"
- Decision of the competent authority (judge, prosecutor's order).
- Explicit permission of the law (CMK catalogue).
- In flagrante delicto.
- Consent (with personal means).
- Emergency (delay is harmful).
Examination from the Perspective of the Defendant and His Defense Counsel
Consequences of the Decision
- Evidence is removed from the file.
- Conviction based on this evidence is reversed.
- Only with other evidence can the conviction survive.
- The right to compensation (CMK article 141) may arise.
ECtHR Standard
The ECHR evaluates the "integrity of the trial" of the conviction based on unlawful evidence; If the evidence is the main basis for conviction, it decides on a violation; if other evidence predominates, it evaluates it more flexibly (Schenk v. Switzerland, Allan v. England).
Practical Tips
The ban on evidence is a powerful tool that can change the balance of criminal cases. Experienced criminal defense attorney is a must.