THE EUROPEANIZATION OF EVIDENCE LAW IN TRANSNATIONAL

AND DOMESTIC CRIMINAL JUSTICE

“Evidence Laundering by Turkish Criminal Procedure Law and ECtHR Jurisprudence”

ABSTRACT

Evidences have a great significance in criminal procedure law because of finding out the material truths. However, there must be some restrictions on obtaining and assessing evidences in criminal procedure which is based on the rule of law. The main purpose of this presentation is to show the legislative outlook of the current legislation related to unlawfully obtained evidences in Turkish criminal procedure law with the effects of ECtHR judgements

THE EUROPEANIZATION OF EVIDENCE LAW IN TRANSNATIONAL

AND DOMESTIC CRIMINAL JUSTICE

 

“Evidence Laundering by Turkish Criminal Procedure Law and ECtHR Jurisprudence”

 

 

Prof. Dr. Adem SÖZÜER*

Res. Assist. Havva Begüm TOKGÖZ*

Res. Assist. Yiğit YENİYETİŞME

 

ABSTRACT

Evidences have a great significance in criminal procedure law because of finding out the material truths. However, there must be some restrictions on obtaining and assessing evidences in criminal procedure which is based on the rule of law. The main purpose of this presentation is to show the legislative outlook of the current legislation related to unlawfully obtained evidences in Turkish criminal procedure law with the effects of ECtHR judgements.

Evidences in criminal procedure law refer to resources which enable to be decided whether the criminal activity has been conducted or not, in other words to find out the material truth. The principle of circumstantial evidence is recognized in criminal procedure law. Therefore, anything involving the legal feature of proofs can be recognized as an evidence. However, it cannot facilitate the way to show everything as an evidence in a criminal procedure and they should be excluded for some features. For this reason, whether the criminal activity has been conducted or not, should be proved only by the evidence which has been lawfully obtained. To put it in a different way, these sort of evidences are subjected to the exclusionary rule in the Turkish criminal procedure law. Regulations as to admissibility of evidence are explicitly stipulated in the Constitution (Art. 38/6) and in the Turkish Criminal Procedure Code (Arts. 206, 217, 230, and 289).

Consequently, this presentation purposes firstly to show the historical background and a general legislation outlook to the topic of evidences, especially the unlawfully obtained ones. After that, our purpose is to examine some of the judgements of Turkish Supreme Court. The most important judgements of Turkish Supreme Court on this topic is the judgements one can call briefly as “imitation bathrobe”, “fake raki” and “planting cannabis without permission” on whether unlawfully obtained evidences can be used in criminal procedure law. Finally, the judgements of Turkish Supreme Court and Constitutional Court will be compared and discussed in the context of how European Court of Human Rights judgements effect them.

 

 

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