The principle that the fruit of the poisonous tree is poisonous, which is a prohibition on the evaluation of evidence

Ezgi Öğredenler

It must be stated immediately that 'unlawfulness' has a broader meaning than 'illegality'; therefore, one must consider not only whether there is a violation of our own laws but also whether there is a violation of universal legal principles concerning the fundamental rights and freedoms of individuals, and if such a violation exists, the presence of unlawfulness must be accepted. For if one wishes to expand the protective purpose of a norm, it is necessary to speak of the concept of "unlawful evidence," which is a more comprehensive and encompassing concept aimed at protecting fundamental rights and freedoms. This is because unlawfulness is a superior term that also encompasses illegality and includes behaviors that constitute a violation of the entire legal order.

Paragraph 6 of Article 38 of the Constitution, titled "Principles regarding crimes and punishments," states, "Findings obtained in violation of the law shall not be accepted as evidence." Likewise, clause (a) of the second paragraph of Article 206 of the Criminal Procedure Code (CMK) No. 5271, titled "Presentation and rejection of evidence," states that evidence shall be rejected if it is obtained in violation of the law. The purpose of criminal procedure is to determine the material truth definitively and beyond any doubt in accordance with the principles prescribed by procedural rules. The tools used to reach the material truth are evidence. With the provision in the second paragraph of Article 217 of the Criminal Procedure Code, titled "Discretion to evaluate evidence," which states, "The alleged crime can be proven by any kind of evidence obtained in accordance with the law," it is clear that the evidence to be used in criminal proceedings must be obtained and evaluated in accordance with the law. As can be seen, unlike the Constitution, the CMK refers not to "illegality" but to "unlawfulness." Viewed from this perspective, it is clear that the prohibition in the CMK is broader than that in the Constitution.

In criminal proceedings, the authority conducting the trial, unlike in civil proceedings, is completely independent in evaluating evidence and has freedom in the assessment of evidence. This situation is essentially proof that the system of conscientious evidence has been adopted.

However, while attempting to reach the material truth, it is very clear that one should not seek to achieve this goal at any cost, but rather avoid human rights violations by taking into account human dignity and the fundamental principles of law. When conducting an investigation for evidence, that is, during both the search and collection stages of evidence, judicial authorities must not act in violation of the rules set by law, and the evidence obtained must be obtained in accordance with the law at any cost. However, unfortunately, in practice, the investigative authorities tasked with collecting evidence do not prioritize this issue, and many decisions are overturned due to the collection of evidence in an unlawful manner—that is, due to this initial procedural violation—and in fact, many files result in acquittal at the higher judicial authorities, the Regional Court of Justice (BAM) and the Court of Cassation.

I believe it would be useful at this stage to touch upon the subject with a few decisions within the framework of the Court of Cassation's rulings.

In a 2011 decision by the 7th Criminal Chamber of the Court of Cassation, it is seen that the principle that the fruit of the poisonous tree is also poisonous is accepted. In the aforementioned decision, it was primarily determined that the measure of detection, interception, and recording of communication applied to the defendants was unlawful. After making this determination, it was emphasized that other evidence obtained by using the protective measure of detection, interception, and recording of communication should be evaluated separately for each crime in accordance with the doctrine that 'the fruit of the poisonous tree is also poisonous.'

Another decision by the Court of Cassation that accepts the doctrine that the fruit of the poisonous tree is also poisonous is the decision rendered by the General Assembly of Criminal Chambers on 17.11.2009. In the aforementioned decision, the Court of Cassation General Assembly of Criminal Chambers attempted to resolve the issue of whether evidence other than that obtained during an unlawful search was sufficient for conviction. In the decision, it was emphasized that the search conducted on the defendant was unlawful, and it was stated that this was accepted by both the Court of Cassation chamber and the Chief Public Prosecutor's Office of the Court of Cassation, which filed the objection. In the decision, the views of some authors in the doctrine regarding the doctrine that the fruit of the poisonous tree is also poisonous were included, and it was emphasized that this doctrine should be applied in the concrete case. In addition, it was stated that if the defendant confessed to the crime as a result of an unlawfully conducted search, this confession could not be accepted as being based on free will. As can be seen, the General Assembly decided that evidence obtained by using unlawful evidence cannot be used in the trial and cannot be taken as the basis for a verdict, even if it was obtained through lawful means.

In a decision by the Court of Cassation referred to as the "fake raki decision," it was stated: .....However, in the report prepared, no determination was included regarding the existence of a delay-related risk as the justification for conducting a search without a court order, nor was any document or information included in the file content to suggest that obtaining a court order for the search performed would create a delay and that this would cause harm. Here, it was concluded that the search operation in question, which the law enforcement carried out without the legal conditions required for their exceptional authority regarding searches being met, was unlawful. Furthermore, according to the General Assembly of Criminal Chambers, our legal system also accepts as legal rules the rules called "general principles of law," which are applied in all civilized countries of the civilized world. Although there is uncertainty about what the general principles of law are, it is accepted without dispute in both practice and doctrine that these principles have legal binding force. Accordingly, it was decided that there was no merit in the local court taking the material evidence obtained during the unlawful search of the defendant's workplace and the report prepared regarding it as the basis for the verdict.

Within the framework of the Court of Cassation's decisions, I would like to reiterate that the "Principle that the Fruit of the Poisonous Tree is also Poisonous," which is one of the most fundamental principles of criminal law, is an important principle based on the fact that evidence not obtained through legal means cannot be used in the trial and cannot form the basis of the trial.

We see that investigations are being conducted in a way that shakes trust in the judiciary, as if lawful procedures are being carried out, by obtaining evidence through unlawful means or by preparing irregular reports and adding them to the file content. If it is not possible to punish a person if the evidence obtained through unlawful methods in the file is excluded from evaluation, neither the investigation nor the prosecution stage can be conducted fairly by basing the verdict on them.

In modern criminal procedure, there is no such understanding as revealing the truth at any cost. It is not possible to speak of a fair trial in a system where evidence is obtained without any limitation and these pieces of evidence are evaluated and used as the basis for a verdict. At this point, in order to ensure the fairness of the trial, some limitations have been foreseen in criminal procedure systems regarding evidence to protect individual and social values. For, it must be stated exactly here that the existence of the specified limitation and, therefore, the prohibition on the evaluation of unlawful evidence has two main purposes: the first is to ensure the legal security of individuals, and the other is to ensure that law enforcement and investigative authorities work in accordance with the law. In a situation where there is no security for individuals, one cannot speak of the concepts of human rights and the rule of law. For this reason, the prohibition on the evaluation of unlawful evidence is an indispensable principle for the establishment of human rights and rule of law principles. Likewise, if law enforcement and investigative authorities do not comply with legal rules while collecting evidence and this unlawfully obtained evidence is evaluated, arbitrariness cannot be prevented. The way to prevent this arbitrariness is again not to take this unlawful evidence into evaluation.

Regarding the criminal liability of those who obtain unlawful evidence, it should also be stated that those who obtain unlawful evidence can be held responsible in accordance with the relevant articles of the Turkish Penal Code, to the extent that their actions fit. For example, if a public official performs behaviors against a person for the purpose of obtaining evidence that are incompatible with human dignity and lead to physical or mental suffering, impairment of perception or will, or humiliation, the existence of the crime of torture is mentioned. Evidence obtained by leaving the victim hungry and thirsty, applying electricity to their body, using certain drugs that will affect their will, or similar actions in order to make them confess to the alleged crime or to reach the material evidence of the crime will not be taken as the basis for the verdict because it will be unlawful evidence. Likewise, for instance, it can be mentioned that the action of a public official who forcibly searches a passerby without reasonable suspicion and happens upon a crime weapon during this search constitutes the crime of unlawful search.

The issue that I mentioned at the beginning of this article and that I want to repeat due to its importance must first of all be handled by starting from the point of violation of the behaviors ordered or prohibited by the legal order as a whole. Thus, acting in violation of the Constitution, international conventions, laws, and other regulatory acts will, as a rule, make the evidence unlawful.

When we examine the Court of Cassation's decisions, although we see that unlawful evidence cannot be taken as the basis for a verdict, especially in its recent decisions, there are also contrary decisions, and this shows that there is still no unity in criminal proceedings. It is noteworthy that there is an opinion that evidence obtained in formal violations that do not result in the violation of the rights of the suspect or defendant can be used in the trial, but I would like to state that I absolutely do not agree with this view. Because, in this regard, I would like to share with the readers a very valuable view that I also fully agree with. Evidence obtained in an irregular manner by investigative authorities and authorized organs of the state should be subject to an absolute prohibition of evaluation, without distinguishing between formal or material violation. In other words, unlawful evidence obtained by state officials during the performance of their duties should be considered within the scope of an absolute prohibition of evaluation. Because the authorities authorized by the state for investigation and prosecution know the legal rules in terms of procedure and substance (at least it is assumed they know), are aware of the consequences that will arise in case of acting in violation of the law, and therefore, unlike private individuals, are equipped with the authority and means to obtain all kinds of evidence. Such being the case, public officials authorized/assigned by the state should not have an option such as obtaining unlawful evidence or using it in a trial. On the contrary, if a public official knowingly obtains irregular evidence, the criminal liability dimension of the act committed should be taken into account.

In this direction, when a piece of evidence is identified as "unlawful evidence," a criminal sanction will be imposed on the persons who obtained this evidence by intentionally acting in violation of the current legislation and ensured its entry into the case file, according to the nature of the act they committed, because they interfered with a fair trial and consequently misled the courthouse in reaching the material truth. Because, as stated above, since the authorities authorized by the state for investigation and prosecution know the legal rules in terms of procedure and substance and it is assumed that they at least know them, and since they should be aware of the consequences that will arise in case of acting in violation of the law, taking the evidence they obtained unlawfully as the basis for evaluation will absolutely not be compatible with the principle of the rule of law, and since it will open the door for these people to see themselves above the law, act as if they are replacing the legislator, and even make procedural transactions and even make decisions with arbitrariness, it is absolutely unacceptable.

Finally, evidence obtained unlawfully in neither the investigation nor the prosecution phase can be taken as the basis for a verdict. During the investigation phase, law enforcement and investigative authorities will evaluate the unlawful evidence obtained during the performance of their duties within the scope of the absolute prohibition of evaluation and will perform procedures in accordance with the procedure, and during the prosecution phase, the criminal judge will also separately and clearly show the unlawful evidence in the case file, but will not be able to use them when rendering a verdict. This is not a situation between individuals or powers; compliance with this principle and therefore not taking evidence obtained in an unlawful manner as the basis for a verdict in line with the principle that the fruit of the poisonous tree is also poisonous is a requirement of the rule of law and conducting a fair trial in accordance with human dignity. Otherwise, especially considering that the stage of collecting this evidence is the investigation stage and that a person who is not yet characterized as a 'defendant' but as a 'suspect' is subjected to many procedures that may be contrary to human dignity under the guise of an obligation to endure, it will question the legality of criminal procedure transactions by violating the fundamental legal principle of the non-limitable presumption of innocence, which is expressed in Article 38 of our Constitution as "No one shall be considered guilty until proven guilty by a judgment," and by performing irregular transactions and all formal and material violations against a person who is not even considered guilty at this stage according to the highest norm of law.

It should not be forgotten that; while the view that even the rules of criminal procedure law should be made not through the defendant, which is a higher concept than the suspect, but for the defendant, is the basis of the modern legal system, this is especially true for the person who is still at the suspect stage. The opposite attitude, as Beccaria, who is accepted as the founder of modern criminal law with his book "On Crimes and Punishments," said; "The claim of wanting a man to be his own accuser is very terrible and ridiculous. Trying to extract the truth with torture as if it were hidden inside his muscles and nerves is savagery and stupidity."