Unlawful Evidence and Admissibility in Court

Turkish Criminal Law has a very strict exclusionary rule regarding evidence. Article 38/6 of the Constitution states: “Findings obtained through illegal methods shall not be considered evidence.” CMK Article 217/2 reinforces this: “The imposed sentence can only be based on evidence obtained in accordance with the law.”

What Makes Evidence “Unlawful”?

Evidence is unlawful if it is obtained by violating fundamental rights or procedural rules.

1. Torture and Duress (Yasak Sorgu Yöntemleri)

Any statement given under torture, mistreatment, drug administration, deference, or deception is NULL and VOID.

• Even if the suspect confesses to being a serial killer under torture, and even if that confession is true, it cannot be used.
• Statements given to police without a Attorney (if Attorney presence was mandatory) are also inadmissible unless confirmed before the judge.

2. Warrantless Search (Arama Kararı Yokluğu)

The police cannot search your home, car, or person without a Judge’s Warrant (or in emergencies, a Prosecutor’s written order).

• Scenario: Police stop your car without a warrant “just to check,” open the trunk, and find 1kg of cocaine.
• Result: The search is illegal -> The cocaine is illegal evidence -> Acquittal (Beraat).

3. Illegal Wiretaps (Gizli Kayıtlar)

• State Wiretaps: Police need a judge’s order to tap your phone. Without it, recordings are trash.
• Private Recordings: If you secretly record a conversation with someone unlawfully, it is usually a crime (TCK 133) and inadmissible.
  • Exception: The Supreme Court allows “Spontaneous Recordings” if it was the only way to prove a sudden crime (e.g., someone starts soliciting a bribe or threatening you, and you hit record right then).

”Fruit of the Poisonous Tree” Doctrine

Turkish Law generally adopts this doctrine (Zehirli Ağacın Meyvesi). If the “Primary Evidence” (Tree) is illegal, then any “Secondary Evidence” (Fruit) derived from it is also illegal.

• Example: Police torture suspect A (Illegal). A confesses and tells them where the gun is hidden. Police go and find the gun (Physical evidence).
• Result: Since the gun was found only because of the torture, the gun is also inadmissible.

Defense Role

In many cases, the defense attorney acts not on “My client didn’t do it,” but on “You didn’t catch him legally.” Challenging the legality of the search warrant or the arrest procedure is the most effective way to secure an acquittal in drug and weapon cases.

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