In criminal procedure, everything is accepted as evidence since the material truth is investigated. This is a consequence of the principle of freedom of evidence. However, in criminal proceedings, unrestricted, unlawful methods that disregard the rights of the accused cannot be followed in order to reach the material truth. Purpose in criminal procedure; to reach the material truth about the concrete event that occurred and to ensure that the event is proven with evidence, leaving no room for doubt. In the prosecution phase, the evidence is the necessary means of proof for the proof of the concrete event that has occurred and for the judge’s opinion.
Evidence that can be used for proof in criminal procedure should represent the event. Evidence representing the event must be in accordance with reason, material truth and law.
ILLEGAL EVIDENCE
In order to reach the material truth and to prevent the disregard of the rules of law, the evidence must be in compliance with the law and must be collected by lawful methods. In this context, the evidence obtained unlawfully cannot be taken as the basis of the judgment; It cannot and should not affect the judge’s conscientious opinion. Prohibitions imposed on illegally obtaining evidence are referred to as “evidence prohibitions”. However, since the evidence obtained through unlawful evidence is also affected by this contradiction, it will not be able to avoid being unlawful.
According to Article 148/3 of the CMK, evidence obtained through prohibited procedures cannot be considered as evidence even if consent is given. In addition, the statement of the person whose statement was taken and whose confession was obtained during the measures of arrest, detention and forcible bringing that were applied unlawfully should also be considered as unlawful evidence and should not be used in the trial.
TYPES OF EVIDENCE IN CRIMINAL CASE
Evidence is divided into categories among themselves. Although there are various classifications, the evidence that proves the main event that the court has to solve is called evidence directly, and the evidence that explains the side events that depend on the main event to be decided is called indirect or indicative evidence. In addition, it is possible to classify the witness, the accused, the expert, the source of which is the person, the object, the document and the evidence as indirect evidence.
Our law has adopted the conscientious evidence system. This system imposes the right and duty of research on the judge ex officio. The judge does not have to be content with the evidence put forward by the prosecution and defense authorities. The court may search for evidence on its own.
It should be noted that; Not every matter asserted in a case needs to be proven. The judge will decide on demand or ex officio, in accordance with the type of crime, which of the defenses put forward will be investigated and which will not. For this reason, the issue of which points need to be proved is a relative matter.
DEFENDANT’S STATEMENTS
Responsible for giving correct answers to all questions regarding the identity of the accused; otherwise, the Misdemeanor Law art. 40 will be penalized. However, he was not held responsible for the inaccuracy of his answers to the questions asked of him. The accused is the person who knows the case best. However, in the event that he thinks that he will receive a punishment after the statements he will make, it is considered natural that he avoids reflecting the truth in his statements about the incident. Because human nature will avoid pain. The legal order has not ignored this fact.
However, although in the past, our legal system considered the confession by the accused to be essential, today this issue is approached with care with the increasing importance given to the emergence of the material truth.
WITNESS EXPLANATIONS
Anyone in a third party position can be a witness. Anyone who has the ability to understand, judge and convey the impressions/information about the event at issue can be a witness. Your witness; Being a mentally ill, child, relative or close person or having been previously convicted for perjury does not prevent testimony. It is one of the least reliable proof tools.
the importance of the witness telling himself the truth before he goes to trial; if he does not tell the truth, he will be punished for false testimony; will swear; He is informed that he cannot leave the courtroom without permission.
It is mandatory for the witness to declare his identity; Even if there is a right to abstain from testifying, this obligation does not change.
If the evidence in a trial consists of witnesses; Witnesses must be heard during the trial.
Various measures can be taken to protect witnesses in the Turkish Penal Code. These measures may be in the form of concealing or altering identity, or allowing the person to escape testimony. If there is a grave danger for the witness, it is also possible to listen to the witness by changing his voice and image.
Statements by Persons Other Than the Defendant and Witness
Under the title of witnesses not sworn in, it is accepted in our law to listen to accomplices as witnesses.
WRITTEN EXPLANATIONS
He knew a thought useful to prove the event subject to the case.
All kinds of writings or explanations made by means of them constitute the evidence of “written explanations/document”. These documents may be official documents such as the minutes of law enforcement, prosecutors and judges; There may also be special articles such as letters and the like.
EXPLANATIONS WITH IMAGE AND AUDIO RECORDING TOOLS
These records are in the nature of documentary evidence and indirectly represent the event. While the tapes recording the moment of the event have the opportunity to represent directly, even those with indirect representation can constitute valuable evidence.
When examining whether these kinds of proof tools are legal evidence; It is necessary to pay attention to the differences such as whether the recording is confidential, whether it is obtained by public officials, whether the venue is a public space, whether the recorded activity is open to the public.
The individual’s private life and communication right are placed under absolute protection with both universal legal rules and the Constitution. These rights may be suspended by a judge’s decision in the following cases:
- In case of a strong suspicion of crime,
- In order to re-establish social peace and tranquility that has been disrupted by crime,
- If there is no other way to obtain evidence.
While it is clear that any evidence not obtained in accordance with the law, no matter how it occurred, can not be taken as a basis for the decision; Even if they are duly filled and preserved, audio/video recordings do not constitute sufficient evidence for a conviction in the doctrine. They must be supported by supporting evidence. However, they can carry the characteristic of a symptom.
SYMPTOMS
Any means of proof that will lead to the conviction or acquittal of the accused, when supported by other evidence, is considered an indication. Examples of these are the goods found at the crime scene, the brake mark, the data obtained as a result of the physical examination of the person. The symptoms are very important in the emergence of the material truth in the possibility of establishing a causal link with the side evidence.
Symptoms directly support the evidence and provide a healthy result in solving the proof problem. For example, the presence of a biological sample belonging to the suspect on the victim in sexual crimes constitutes serious evidence that the suspect has had physical contact with the victim.
ELECTRONIC EVIDENCE
If the data, records and documents created, changed, transmitted or stored in the electronic environment are used or desired to be used for the proof of an alleged fact, electronic evidence is in question.
Electronic evidence can vary according to the environment they are in, the way they are obtained and their power to prove the concrete event that has occurred. Because; sometimes they are considered as documents and sometimes as symptom evidence. Since these evidences are more open to outside intervention than other evidence, they should be carefully investigated and supported by other evidence.
After the proof is completed, the judge now comes to a conclusion as to whether the alleged crime was committed by the accused. The opinion is, without leaving any room for doubt, that as a result of the evaluation of the available legal evidence, within the scope of the file, it is determined that the crime has been committed in the conscience and mind of the judge. In this context, in order for the accused to be punished, the act of the accused must be proven in a way that does not create doubt. Because the execution of the sentences, especially in terms of heavy criminal cases, can lead to imprisonment sentences that restrict freedom in a serious sense.
