Since the material truth is investigated in criminal procedure, everything is considered evidence. This is a consequence of the principle of freedom of evidence. However, in order to achieve material truth in criminal proceedings, methods that are unlimited, contrary to the rules of law and violate the rights of the accused cannot be followed. The purpose of criminal procedure is to reach the material truth about the concrete incident that has occurred and to ensure that the incident is proven by evidence in a way that leaves no room for doubt. At the stage of prosecution, evidence is the means of proof necessary for proving the concrete event that has occurred and for the judge’s opinion.
The evidence that can be used for proof in criminal procedure must represent the event. The evidence representing the event must comply with reason, material fact and the law.
UNLAWFUL EVIDENCE
In order to achieve the material truth and to prevent the disregard of the rules of law, the evidence must be in accordance with the law and collected by lawful methods. In this context, the evidence obtained in violation of the law cannot be based on the judgment; it cannot and should not affect the conscientious opinion of the judge. Prohibitions imposed on obtaining evidence in violation of the law are referred to as ‘prohibitions on evidence’. However, since the evidence obtained through illegal evidence is also affected by this violation, it will not be able to get rid of being illegal.
CMK m.according to 148/3, evidence obtained by prohibited procedures cannot be considered evidence, even if consent is given. However, the statement of the person whose testimony and confession were obtained during the unlawful arrest, detention and forcible removal measures should also be considered as unlawful evidence and should not be used in the trial.
TYPES OF EVIDENCE IN A CRIMINAL CASE
The evidences are decategorized among themselves. Although there are various classifications, the evidence proving the main event that the court should solve is called direct evidence, while the evidence explaining the side events that depend on the main event that should be decided is called indirect or symptom evidence. In addition, it is possible to classify witnesses, defendants, experts whose source is a person, and evidence whose source is an object document and symptom as indirect evidence.
Our law has adopted a system of conscientious evidence. This system loads the rights and duties of research to the judge personally. The judge does not have to be content with the evidence put forward by the prosecution and defense authorities. The court can conduct a spontaneous investigation of evidence.
It should be noted that not every point put forward in a case needs to be proven. The judge will decide which of the defenses put forward will be investigated and which ones will not be investigated upon request or if you re in accordance with the type of crime. Therefore, the question of which points should be proved is a relative one.
THE DEFENDANT DESCRIPTIONS
The accused is obliged to correctly answer all questions related to his identity; otherwise, the Misdemeanor Code is amended by art. he will be punished according to 40. However, apart from this, he was not held responsible for the fact that his answers to the questions asked to him were not correct. The accused is the one who knows the incident best. However, it was considered natural that he should avoid reflecting the truth in his statements about the incident in case he thought that he would receive a punishment after the statements he would make. Because human nature will escape from pain. The legal order has not ignored this fact.
However, although in the past our legal order considered the realization of confession by the accused to be the main one, today this issue is also approached with caution with increasing importance given to the emergence of material truth.
WITNESS STATEMENTS
Anyone in a third-person position can be a witness. Anyone who has the ability to understand the event that is the subject of the case, to reason and to convey his impressions/information about it can be a witness. Even if the witness is mentally ill, a child, a relative or a close person, or has previously been convicted of false testimony, this does not prevent the witness from testifying. It is one of the least reliable means of proof.
Before proceeding to the hearing of the witness, he is informed of the importance of telling him the truth; if he does not tell the truth, he will be punished for false testimony; he will swear; he will not be able to leave the courtroom without permission.
It is mandatory for the witness to make a statement about his identity; this obligation does not change even if he has the right to abstain from testifying.
If the evidence consists of witnesses in a trial, the witnesses must be listened to during the trial.
In the Turkish Criminal Code, various measures can be taken to protect witnesses. These measures may be in the form of hiding the identity, changing it, or the fact that the person has the opportunity to get rid of the testimony. If there is a serious danger to the witness, it is also possible to change the audio and video of the witness and listen to it.
Statements of Persons Other Than the Accused and the Witness
Under the heading of witnesses who have not been sworn in, it has been accepted in our law that accomplices should be heard as witnesses.
WRITTEN EXPLANATIONS
All kinds of articles that report a thought that is useful to prove the event that is the subject of a lawsuit, or statements made through them, constitute evidence of ‘written statements / documents‘. These documents may be official documents such as law enforcement, prosecutor’s, judge’s minutes, as well as letters of a special nature such as letters and the like.
DESCRIPTIONS OF TOOLS THAT RECORD IMAGES AND SOUNDS
These records are documentary evidence and indirectly represent the event. Tapes recording the moment of the incident have the opportunity to represent it directly, and even those that are an indirect representation can create valuable evidence.
When examining whether such means of proof are legal evidence; whether the record is confidential, whether it is obtained by public officials, whether the place is a public space, whether the recorded activity is open to the public, etc., it is necessary to pay attention to issues that have differences.
Both the universal rules of law and the Constitution, as well as the individual’s private life and the right to communicate, have been given absolute protection. These rights may be suspended by a judge’s decision in the following cases:
- In the presence of a strong suspicion of a crime,
- For the purpose of restoring social peace and tranquility disturbed by crime,
- If there is no possibility to obtain evidence in another way.
Although it is certain that no evidence that has not been obtained in accordance with the law can be based on a verdict, in any case; audio/ video recordings, even if they have been duly filled and stored, do not constitute sufficient evidence for a conviction decision in the doctrine alone.They must necessarily be supported by side evidence. But they can carry the character of a symptom.
SYMPTOMS
Any means of proof that, when supported by other evidence, will ensure the conviction or acquittal of the accused is qualified as a symptom. These include items found at the crime scene, brake tracks, data obtained as a result of a person’s physical examination, as an example. Symptoms are very important for the emergence of material truth in the event that a connection between the ancillary evidence and the original is established.
Symptoms directly support the evidence and ensure that a healthy conclusion is reached in solving the problem of proof. For example, the presence of a biological sample belonging to the suspect on the victim in sexual crimes creates serious evidence that the suspect is in physical contact with the victim.
ELECTRONIC EVIDENCE
If data, records and documents created, modified, transmitted or stored electronically are used or intended to be used to prove an alleged case, electronic evidence is involved.
Electronic evidence can vary depending on the environment in which they are located, the way they are obtained, and the forces of proving a concrete event that has occurred. For this reason; sometimes they are considered as documents, sometimes as evidence of symptoms. Since these evidence are open to outside interference compared to other evidence, they should be carefully investigated and supported by other evidence.
After the proof activity is completed, the judge now makes a decision on whether the alleged crime was committed by the defendant. The opinion is that it is fixed in the conscience and mind of the judge that the crime was committed within the scope of the file as a result of the evaluation of the evidence in accordance with the current law, without leaving room for doubt. In this context, in order for the defendant to be punished, the defendant’s action must be proven in a way that does not create suspicion. Because the execution of sentences, especially in terms of severe criminal cases, can lead to prison sentences that are severely restrictive of freedom.
