Gaziantep Üniversitesi Hukuk Fakültesi Dergisi

Öz

Evidence is a means of proof that allows the incident under trial to be reconstructed before the court in criminal proceedings. Prohibited evidence refers to evidence obtained through the incomplete, incorrect, or complete non-application of at least one legal provision during its acquisition or collection. Such evidence arises when the obligation to inform is not fulfilled, prohibited procedures are used during statements or interrogations, or evidence-gathering methods are not carried out in accordance with the law. States have adopted various approaches regarding the use of prohibited evidence in criminal trials. These approaches are the absolute acceptance approach, the relative evaluation approach, and the absolute rejection approach. Turkish criminal procedure adopts the absolute rejection approach. Under this framework, prohibited evidence and evidence derived from it are not used in the trial and are not taken as the basis for any judgment. If the illegality of prohibited evidence is identified after it has been included in the file, it remains in the file but must be clearly and separately indicated. While the Court of Cassation predominantly adopts the absolute rejection approach in evaluating prohibited evidence, it has been observed to adopt a relative evaluation approach in certain decisions involving evidence arising from procedural errors. The Constitutional Court acknowledges that the review of the legality of evidence belongs to the courts of first instance, but maintains that the use of evidence which is clearly unlawful as the sole and decisive element in a trial may violate the right to a fair trial. The European Court of Human Rights (ECHR), however, assesses whether the entire proceedings constituted a fair trial in local courts, irrespective of the legality of the evidence presented. Furthermore, both the Constitutional Court and the ECHR consider the use of prohibited evidence obtained in violation of the prohibition of torture as a direct infringement of the right to a fair trial.