1. INTRODUCTION
The statement of a suspect in
custody is taken immediately before the suspect is referred to the Criminal
Judgeship of Peace or, in other words, immediately before the decision
concerning her/his liberty. This gives the officer taking the statement the ability
to influence the suspect’s declaration without any physical interference. In
practice, statements such as “If you do not confess, you will be placed
in pretrial detention” or “If you tell what happened, you will be
released today” are typical manifestations of this influence. On the
other hand, reminding the suspect of provisions in her/his favor is, depending
on the context, considered to fall within lawful information. The boundary
between pressure that steers the will and lawful information becomes blurred,
particularly in organized crime investigations in which effective repentance
provisions come into play.
In this article, first, the
normative basis of the principle of free will in the taking of statements and
interrogation will be briefly set out, then the unlawfulness of making a
declaration in a particular manner by means of a threat of pretrial detention
or a promise of release will be examined in light of the decisions of the Court
of Cassation, and finally the evidentiary value of a statement obtained in this
way will be assessed.
2. NORMATIVE BASIS OF THE PROCEDURES
FOR TAKING STATEMENTS AND INTERROGATION
The basic rule to be followed in the
taking of statements and interrogation is set out under Article 148 of the Code
of Criminal Procedure Nr. 5271 (the “CCP”). The relevant parts of the article
read as follows:
“(1) The statement of the suspect and the defendant must be based on
free will. Physical or mental interventions that impede this, such as (…)
deception, force or threats, or the use of certain means, may not be carried
out. (2) No benefit contrary to law may be promised. (3) Statements
obtained through prohibited methods may not be evaluated as evidence even if
given with consent.”
As is understood from the words “such
as” in the provision, the methods listed are illustrative and are not
limited to the examples listed under the said code. Whether an intervention
constitutes a prohibited method must be determined not according to the
resistance of the specific suspect but according to objective criteria.
Therefore, a method that is objectively capable of eliminating the freedom of
will of an average person is a prohibited method even if it did not affect the
will of a resilient suspect in the specific case [1].
Subsection 1 of Section 136a of the
German Code of Criminal Procedure, which is the source of the provision, reads
as follows:
“The suspect’s freedom of volitional decision-making and volitional
action must not be impaired by ill-treatment, fatigue, physical interventions,
administration of drugs, torture, deception or hypnosis. Coercion may be used
only where permitted under the criminal procedure law. Threatening with a
measure not permitted under the provisions of the law and promising a benefit
not provided for by law are prohibited” [2].
The provision expressly prohibits
threatening with a measure that may not be applied under the law and promising
a benefit not provided for by law. Although the CCP does not contain this
detail, interpreting the two concepts with the same content is consistent with
the purpose of the provision.
The constitutional basis of the
principle is Article 38/5 of the Constitution, which provides that no one may
be compelled to make a statement incriminating oneself, and Article 38/6, which
provides that findings obtained unlawfully cannot be admitted as evidence. When
these provisions are read together with Article 19 on personal liberty,
converting a measure restricting liberty into a means of obtaining a statement
is incompatible with the Constitution.
3. THE UNLAWFULNESS OF MAKING A
DECLARATION IN A PARTICULAR MANNER BY MEANS OF A THREAT OF PRETRIAL DETENTION
OR A PROMISE OF RELEASE
3.1. Authority in Decisions Concerning Liberty
and the Statutory Conditions for Pretrial Detention
The legal nature of a statement
concerning pretrial detention or release depends on determining who may decide
on these matters and under what conditions. The decision on releasing a suspect
in custody or referring the suspect to the criminal judgeship of peace with a
request for pretrial detention belongs to the public prosecutor. A law
enforcement officer has no authority in this regard. Pursuant to Article 100 of
the CCP, for a pretrial detention decision to be rendered, concrete evidence
indicating the existence of strong suspicion of a crime and a ground for
detention, such as an attempt to flee, to tamper with evidence or to put
pressure on witnesses, must exist, and the measure must be proportionate.
During the investigation phase, this decision is rendered by the criminal judge
of peace upon the request of the public prosecutor (CCP Article 101).
In light of these provisions, a
suspect’s failure to confess, denial of the accusation or exercise of the right
to remain silent does not correspond to any of the grounds for pretrial
detention listed under the law. Therefore, the decision on pretrial detention
or release cannot be made contingent on the content of the suspect’s statement.
The public prosecutor and the criminal judge of peace can exercise their powers
only within the purposes and conditions prescribed by law.
3.2. Threat of Pretrial Detention
A threat within the meaning of
Article 148 of the CCP is informing the suspect that an action beyond the
limits permitted by law will be taken in order to obtain a statement [3].
Telling the suspect or her/his relatives that harm will be done if the suspect
does not make a statement in the desired manner [4] and informing the suspect
that the punishment will be increased if s/he denies the crime, also fall
within this scope [5].
With regard to intimidation by a
measure that cannot be applied in the specific case, the doctrine states as
follows:
“Accordingly, the person taking the statement or conducting the
interrogation influencing the free will of the suspect or defendant, and
thereby obtaining her/his statement, by frightening the suspect or
defendant that, if s/he does not make a statement, a measure that does not in
fact exist or, even if it exists, cannot be applied in the case will be applied,
shall be considered a threat within the meaning of Article 148 of the CCP.” [6]
In light of these determinations,
the statement “If you do not acknowledge, you will be placed in pretrial
detention” informs the suspect not of a measure existing under the law
but of a measure that cannot lawfully be applied on the ground of not acknowledging.
Like informing the suspect that the punishment will be increased in case of
denial, telling the suspect that s/he will be placed in pretrial detention in
case of denial makes the content of the defense the criterion of a sanction
that cannot lawfully be linked to it. Informing the suspect that her/his spouse
will also be taken into custody if s/he does not speak, or statements such as “everyone
who denied in this file has been placed in pretrial detention” likewise
constitute an implicit threat of pretrial detention to the extent
that they give the suspect the impression that the measure depends on her/his
own statement.
The capacity of the person making
the threat does not affect the existence of unlawfulness, but it is significant
in terms of its gravity. A law enforcement officer, who has no authority
concerning pretrial detention, making the measure contingent on the suspect’s
statement involves an element of deception in addition to the threat. This is
because it is not possible for law enforcement officers to render a pretrial
detention decision or to refer the suspect for pretrial detention. On the other
hand, it is stated in the doctrine that a criminal judge of peace who makes the
non-exercise of the power of pretrial detention conditional on the suspect’s
confession or on indicating the location of the evidence of the crime resorts
to the method of threat within the scope of prohibited interrogation. [7].
In its Merabishvili v. Georgia
judgment, the European Court of Human Rights (the “ECtHR”) found that the
detained applicant had been taken out of his cell at night and brought to meet
the Chief Prosecutor, and that information unrelated to the crimes for which he
was being tried had been requested from him; accepting that detention had
at this stage turned predominantly into a means of pressure aimed at obtaining
information, it held that Article 18 in conjunction with Article 5/1 of
the European Convention on Human Rights (the “ECHR”) had been violated [8].
3.3. Promise of Release
Article 148/2 of the CCP provides
that no benefit contrary to law may be promised. The doctrine explains in which
cases a benefit is deemed contrary to law as follows:
“The fact that the promised benefit cannot be fulfilled in any way
or in the specific case, or is not within the authority of the person making
the promise, means that the benefit is contrary to law. (…) Similarly,
where the person taking the statement or conducting the interrogation makes a
promise on a matter within her/his own authority, the promised benefit cannot
be interpreted as a benefit contrary to law. However, promising benefits that
are not within the authority of the promisor will be considered making a
promise contrary to law. (…) However, even if provided for by law, for
the promise of these benefits to be considered lawful, the promise must be made
by the competent authorities and must result within the discretionary power
granted to them by law. Otherwise, the promised benefit, even if
provided for by law, will be considered as promising a benefit contrary to
law.” [9]
A promise of release appears in
practice in statements such as “If you tell the truth, you will get out
today” or “If you give these names, you will not be placed in
pretrial detention”. When the promise is made by law enforcement
officers, the unlawfulness is clear in terms of authority. The doctrine states
this as follows:
“For example, promising a benefit contrary to law, which is another
prohibited method listed in Article 148 of the CCP, can in many cases be
regarded as deception. Indeed, for example, the person taking the
statement telling the suspect that s/he will not be placed in pretrial
detention if s/he talks may be considered deception, since whether a person is
placed in pretrial detention (or not) is not a matter within the authority of
the law enforcement officer. By contrast, the person taking the
statement telling the person that s/he will help the person avoid pretrial
detention, or informing the suspect about procedures such as effective
repentance provided for in the laws, cannot be regarded as a promise contrary
to law.” [10]
Promising a benefit that is not
within the authority of the official conducting the interrogation is likewise a
promise of a benefit contrary to law [11]. Indeed, a law enforcement officer’s
promising that the sentence will be suspended in return for a confession is a
prohibited interrogation method, since determining the sentence falls within
the authority of the court.
Where the promise is made by the
public prosecutor or the judge, what is decisive is the limit of discretionary
power explained above. The termination of custody or detention is determined
according to the degree of suspicion of the crime, the existence of grounds for
detention, and proportionality. The suspect’s confession, on the other hand, is
not among the criteria for pretrial detention. For this reason, the prosecutor
or judge making release conditional on a statement of a particular content is
contrary to law, as it means that the power is used for a purpose not envisaged
by the law.
The doctrine emphasizes that a
promise of release also contains an implicit element of threat and deception:
“Promising the suspect or defendant that s/he will be released if
s/he confesses the crime also contains the threat that the state of deprivation
of liberty will continue if s/he does not do what is desired, and
failure to fulfill this promise will also amount to deception.” [12]
Making the promise in return for a
statement contrary to the truth creates a separate danger. A suspect who wishes
to regain liberty may take responsibility for a crime that s/he did not commit
or may accuse third parties in line with the expectation of the interrogator.
Indeed, in the doctrine it is accepted that a person may confess to having
committed a crime although innocent, for reasons such as kinship or compassion,
and that confession has therefore lost the evidentiary value it had in the past
[13]. Since Article 148/3 of the CCP makes no distinction in this respect, a
statement obtained in this way cannot be used as evidence with respect to the
other suspects named in the statement either.
3.4. Distinguishing Between Lawful Information
and Threat & Promise
That a threat of pretrial detention
and a promise of release are prohibited does not mean that the suspect cannot
be given information about her/his legal situation. In accordance with the
views set out above, informing the suspect about provisions in her/his favor
prescribed by law, such as effective repentance, is not a promise contrary to
law. Likewise, telling the suspect that s/he may benefit from a sentence
reduction if s/he discloses the instigator pursuant to Article 38/3 of the
Turkish Penal Code (the “TPC”), or the public prosecutor’s offering of
reconciliation, is also not a prohibited method [14]. Regarding the effect of an
acknowledgement on the determination of the sentence, the doctrine states as
follows:
“Accordingly, we are of the opinion that the person taking the
statement or conducting the interrogation reminding the suspect or defendant
that assisting in clarifying the incident or confessing the crime may be taken
into account in her/his favor when determining the sentence, and giving
the suspect or defendant information in this regard, should not be considered
as promising a benefit contrary to law.” [15]
In this framework, the following
matters must be assessed together in the specific case:
- Whether the measure is linked to
the content of the statement: Explaining to the suspect that s/he may be referred to the Criminal
Judgeship of Peace with a request for pretrial detention is not a threat in
itself. However, where the same information is tied to the content of the
statement through suggestions such as “but if you talk, this request will
not be made,” it exceeds the limit of information since it is aimed at
influencing the suspect’s will, and, depending on the circumstances of the
specific case, amounts to a threat or a promise contrary to law.
- The authority of the person making
the statement to decide on the measure: A statement by an unauthorized person about
pretrial detention or release is capable of misleading the suspect. Therefore,
a promise of release given by law enforcement officers also constitutes
deception.
- Whether the statutory conditions
for pretrial detention exist in the specific case: Mentioning a measure whose conditions do not
exist means frightening with a harm that does not in fact exist.
The criminal judge of peace’s
explanation, during interrogation, of the conditions of pretrial detention, the
state of the evidence, and the judicial control options is legitimate
information. The difference between the judge deciding with regard for proportionality
and making the pretrial detention decision conditional on a confession lies in
whether the content of the defense is turned into the price of liberty.
3.5. Assessment in Light of the Decisions of
the Court of Cassation
The Court of Cassation does not
limit the concept of prohibited interrogation methods to physical
interventions; it also considers methods that influence the suspect’s will by
psychological means to fall within the scope of Article 148 of the CCP. The decision
of the 1st Criminal Chamber of the Court of Cassation, bearing the
Basis number 2003/3819 and the Decision number 2004/299 and dated 16.02.2004,
concerning a case in which a conversation held in a casual manner between a
defendant who had stated that he would exercise the right to remain silent and
a law enforcement officer was recorded, reads as follows:
“(…) Article 135/a of the former Code of Criminal Procedure, as amended
by Law Nr. 3842, defined prohibited interrogation methods. Article 254/2 of the
said Code, as likewise amended by Law Nr. 3842, is also in place. In
light of these provisions, it is clear that a conviction cannot be established
by relying on evidence obtained through prohibited interrogation methods.
In the incident in the file, defendant C. clearly stated that he would not give
a statement to law enforcement officers. Nevertheless, by secretly recording on
video the interview held with him in a casual manner, the defendant was
deceived and was prevented from making his defense with free will.
Therefore, it is not possible to base the judgment on the videotape, which is
understood to have been obtained through prohibited interrogation methods.” [16]
The decision does not look for the
existence of a formal statement-taking procedure; it also considers
conversations that are functionally of the nature of interrogation to fall
within the scope of Article 148. In light of this approach, a statement such as
“If you talk, you will get out,” made in a conversation prior to
the statement that does not appear in the statement record, also renders it
questionable whether the statement taken subsequently is based on free will.
That forms of pressure not expressly
listed under the law may also eliminate free will was explained in the
dissenting opinion written to the decision of the 7th Criminal
Chamber of the Court of Cassation, bearing the Basis number 2014/16063 and the
Decision number 2015/16872 and dated 04.05.2015:
“(…) In essence, the statement taken by law enforcement officers is also
a statement taken under the pressure of unlawfully obtained evidence. (…) In
cases where violations of law have been committed, it cannot be ascertained for
what motive a statement given without these additional safeguards was made. (…)
Where the state has obtained evidence unlawfully through an irregular,
unjust act of its own, it can be accepted that only a statement taken with
these safeguards given is an untainted and new statement, that only then can it
be used as the basis of a conviction, and that in this way the right to a fair
trial is not violated. On the other hand, as stated in Article 148 of the CCP,
the defendant’s statement must be based on free will. (…) Because the
state has obtained unlawful evidence by violating the confidentiality of the
person’s private life, has created a situation against the defendant, and has
thereby cornered the individual. This situation may be
interpreted as one that falls, in a sense, within the “deception” described in
the article on prohibited interrogation methods or the similar term “such as.”
(…)” [17]
What the dissenting opinion regards
as decisive is whether the suspect, feeling cornered, was compelled to
make a statement. The dissenting opinion also emphasized that, in this
case, in order for a subsequent statement to be regarded as an “untainted
and new statement,” additional safeguards must be provided, such as
informing the defendant that the previous statement will not be taken into
account and enabling the defendant to benefit from the assistance of defense
counsel. The situation of a suspect who makes a statement out of fear of losing
liberty must also be assessed according to this criterion.
A prohibited method also exists
where a promise and a threat are used together. Regarding the case subject to
the decision of the Military Court of Cassation Board of Chambers, dated
21.12.1992 and numbered 145/146, the doctrine states as follows:
“In a case subject to the Military Court of Cassation decision, the
defendant, whose statement was taken by the military prosecutor in relation to
a death, was told that if he told the truth he would be helped, that his
act might constitute the offense of causing death by negligence, that in that
case his sentence could be suspended, and that otherwise the sheet he was
sitting on could become his shroud; upon this, the defendant acknowledged the
crime. The Military Court of Cassation held here that the act carried
out was a suggestion made to a person with no knowledge of the legislation,
that this constituted deception, and that the evidence obtained could not be
used. Although the Military Court of Cassation held that the act here was
a deception regarding the legal situation, in fact the act in question is a
threat.” [18]
Although an erroneous assessment was
made in the Military Court of Cassation’s decision regarding the nature of the
prohibited interrogation, it was accepted that where a promise exceeding
authority is used together with a threat of a serious sanction, the will is
eliminated and the statement taken falls within the scope of prohibited
evidence.
On the other hand, the General
Assembly of the Criminal Chambers of the Court of Cassation does not regard
reminding the suspect of effective repentance provisions in organized crimes
during the statement, and the suspect’s deciding of her/his own free will to
benefit from these provisions, as a promise of a benefit contrary to law, and
makes the lawfulness of the statement contingent on the absence of a concrete
allegation of promise or coercion. The decision, bearing the Basis number
2019/213 and the Decision number 2021/118 and dated 17.03.2021, of the General
Assembly of the Criminal Chambers of the Court of Cassation on the matter reads
as follows:
“Since effective repentance provisions are set out under the law as a
personal circumstance providing for the elimination of the perpetrator’s
punishment or a reduction of the punishment, reminding the person of these
provisions while taking her/his defense within the scope of organized
criminality is not a ‘promise contrary to law’ under the second paragraph of
Article 148 of the CCP, nor is there any unlawfulness in the person’s
giving a statement by accepting, of her/his own will, to benefit from these
provisions, or in that statement being used as evidence in cases being
heard against other persons by granting the defendants in those cases effective
means of objection in accordance with the right to a fair trial. (…) In the
examination of the file, when the following matters are assessed together: that
the witnesses whose statements were taken as the basis of the judgment made
their statements of their own will in their statements before their defense
counsel in the investigations conducted against themselves; that they
have no concrete allegations based on evidence that a promise contrary to law
was made to them by anyone at any stage or that they were coerced in this
direction, (…) it is understood that the court’s judgment is not based
on unlawful evidence in terms of the procedures by which the witnesses were
heard and the evaluation of these statements as the basis of the judgment.” [19]
It must, however, be emphasized that
effective repentance provisions provide for the elimination or reduction of the
sentence and do not provide for release as a direct consequence. Therefore,
promising that the suspect will be released if s/he benefits from effective
repentance or telling the suspect that s/he will be placed in pretrial
detention if s/he does not give the desired statement, is not within the scope
of the reminder that the Court of Cassation accepts as lawful. A statement
taken under a promise contrary to law cannot be used as the basis of a judgment
either against the person giving the statement or against the third persons
named in the statement.
4. THE EVIDENTIARY VALUE OF A
STATEMENT OBTAINED THROUGH A THREAT OF PRETRIAL DETENTION OR A PROMISE OF
RELEASE
4.1. Absolute Prohibition of Evaluation
The rules on unlawfully obtained
evidence are set out under Article 38/6 of the Constitution and under Articles
206/2-a, 217/2, 230/1-b and 289/1-i of the CCP. In the dissenting opinion
written to the 7th Criminal Chamber decision cited above, these
provisions were also assessed together, and it was stated that it is not
possible to base a judgment on unlawful evidence. Article 148/3 of the CCP, on
the other hand, with the phrase “even if given with consent,”
provides for an absolute prohibition of evaluation that does not allow the
gravity of the violation to be weighed against the public interest. These rules
relate to public order and reflect the state’s obligation to protect human
dignity. For this reason, the suspect cannot waive her/his fundamental rights
in criminal procedure [20]. A statement taken through methods that eliminate
the will must be regarded as non-existent in accordance with the theory of
procedural acts, even in the absence of Article 148/3 of the CCP [21]. The
record of such a statement cannot be read out at the hearing, nor can persons
who were present when the statement was taken be heard as witnesses to the
procedure [22]. Otherwise, a statement removed from the proceedings by way of
the record would be brought back into the proceedings by way of witness
testimony.
The prohibition of evaluation does
not disappear by the statement being corroborated by other evidence. The
confession’s being based on free will and its being supported by other evidence
are mutually independent criteria. Therefore, the corroboration by
material evidence of a confession obtained through a threat of pretrial
detention or a promise of release does not make it lawful.
4.2. Proving the Prohibited Method
A threat of pretrial detention and a
promise of release often take place in settings without witnesses and without
recordings. Requiring the prohibited method to be fully proven would weaken the
protection provided by Article 148 of the CCP. Doubt as to the existence of a
prohibited method must be assessed in favor of the defendant; however, abstract
allegations not based on a concrete fact should not produce this result [23].
Accordingly, where the suspect supports her/his allegation with concrete indications
such as the length of custody, the suspect’s release immediately after the
statement, or a change in the pretrial detention request depending on the
content of the statement, the burden of showing that the statement was given
with free will should pass to the prosecution.
Where a suspect who gave a statement
under threat or promise at law enforcement office subsequently makes a similar
statement before the prosecutor or the judge, for the confirmation in Article
148/4 of the CCP to have any meaning, the new statement must be free of the
effect of the previous interference. A suspect who encountered the promise “If
you say the same thing at the prosecutor’s office, you will be released”
at law enforcement office and repeated the same account a few hours later may
be showing not that the effect of the promise has ended but that its
requirement has been fulfilled. In this case, the subsequent statements taken
will also be unlawful.
4.3. The Fruit of the Poisonous Tree!
Where a suspect who gave a statement
under threat or promise points out the location of the evidence of the crime or
gives the names of accomplices, the fate of the evidence reached on the basis
of this statement arises as the problem of remote effect. The General Assembly
of the Criminal Chambers of the Court of Cassation has adopted remote effect on
the example of a statement taken unlawfully. The decision, bearing the Basis
number 2005/7-144 and the Decision number 2005/150 and dated 29.11.2005, of the
General Assembly of the Criminal Chambers of the Court of Cassation on the
matter reads as follows:
“Other evidence may be reached on the basis of a statement unlawfully
taken from the defendant or of evidence obtained as a result of an unlawfully
conducted house search. In this case, there is a statement or evidence obtained
as a result of a search that is of the nature of unlawful evidence, and this
evidence also cannot be used in the proceedings. Not using the evidence
obtained as a result of an unlawfully conducted search in the proceedings is
not sufficient. Since the evidence obtained by means of this evidence is
also unlawful, it must not be used in the proceedings either.” [24]
It is accepted that, pursuant to
Article 38/6 of the Constitution, indirectly obtained evidence also cannot be
used in the proceedings [25]. This is because if other evidence obtained by
means of evidence that is unlawful at its basis were made the basis of the
judgment, it would not be possible to prevent unlawful practices. When Articles
148/3 and 217/2 of the CCP are assessed together with Article 38/6 of the
Constitution, too, the conclusion is reached that evidence indirectly reached
on the basis of a statement taken through prohibited methods cannot be made the
basis of the judgment. As to the scope of remote effect, the doctrine states as
follows:
“On the other hand, the prohibition of evaluation at issue here includes
not only the case in which the evidence directly forms the basis of the
judgment but also the possibility that this evidence may be the starting point
for another investigation. In other words, just as evidence obtained by
relying on unlawful evidence cannot be used directly in the judgment, new
investigations cannot be undertaken relying on this indirect evidence, for
example an investigation cannot be launched against a person.” [26]
This is particularly important with
respect to statements given in return for a promise of release and accusing
third parties.
Since a threat of pretrial detention
and a promise of release are interventions that directly target freedom of will
and are subject to an absolute prohibition of evaluation, remote effect must be
applied in these cases as well. Where an absolute prohibition of evaluation has
been violated, derivative evidence cannot be used, nor can it form the basis
for the initial suspicion necessary to commence an investigation. What is
decisive is the causal link between the prohibited statement and the evidence
obtained subsequently. Evidence reached through an investigative activity that
is independent of the prohibited statement and began before it is not within
the scope of remote effect. By contrast, evidence obtained in line with a
statement taken through prohibited methods falls within the scope of the
prohibition of evaluation.
5. CONCLUSION
Pretrial detention depends on the
conditions of strong suspicion of a crime, a ground for detention and
proportionality. The suspect’s failure to acknowledge the crime, failure to
provide the requested information and names, or exercise of the right to remain
silent constitutes none of these conditions. Therefore, making pretrial
detention contingent on a statement of a particular content constitutes a
threat within the meaning of Article 148 of the CCP. When this threat is made
by law enforcement officers, it also constitutes deception. A promise of
release, on the other hand, is a promise of a benefit contrary to law that is
outside the authority of law enforcement officers and, for the prosecutor or
judge, means the use of authority for a purpose not envisaged by the law. By
contrast, objectively explaining to the suspect the conditions of pretrial
detention and provisions in her/his favor such as effective repentance and Article
62 of the TPC is legitimate information. The basic criterion distinguishing the
two situations is whether the outcome concerning liberty is made contingent on
the content of the statement.
While the Court of Cassation also
regards reminding the suspect of effective repentance provisions as legitimate,
it makes the lawfulness of the statement contingent on the person acting of
her/his own will and on the absence of a concrete allegation of a promise or
coercion contrary to law.
A statement obtained through a
threat of pretrial detention or a promise of release cannot be evaluated as
evidence pursuant to Article 148/3 of the CCP, even if given with consent. The
prohibition is absolute, and corroboration of the statement by material
evidence does not change the result. A statement obtained in this way cannot be
used with respect to third persons named in the statement either. Subsequently
repeated statements can be evaluated only where they are free of the effect of
the previous interference, while evidence reached on the basis of this
statement cannot be used in the proceedings in accordance with the principle “The
fruit of the poisonous tree is also poisonous” and the acceptance of
the General Assembly of the Criminal Chambers of the Court of Cassation.
Osman
Serhat Demirci, Legal Intern
References:
1. Selek O., “Yargı Kararları Işığında Türk ve Alman Ceza Muhakemesi
Hukukunda Yasak İfade Alma ve Sorgu Yöntemleri ve İspat Hukuku Boyutu” (“Prohibited
Methods of Taking Statements and Interrogation in Turkish and German Criminal
Procedure Law in Light of Judicial Decisions and Their Dimension in the Law of
Evidence”), Yeditepe University Faculty of Law Journal, Vol. XXIII, Issue:
2, 2026, p. 945.
2. Selek, Yasak İfade Alma ve Sorgu Yöntemleri (“Prohibited Methods of
Taking Statements and Interrogation”), p. 913.
3. Yaşar O., Uygulamalı ve Yorumlu Ceza Muhakemesi Kanunu (“Applied and
Annotated Code of Criminal Procedure”), Vol. I: Articles 1-222, Seçkin Publishing
House, Ankara, 2007, p. 744.
4. Demirbaş T., Soruşturma Evresinde Şüphelinin İfadesinin Alınması (“Taking
of the Suspect’s Statement in the Investigation Phase”), 7th Edition,
Seçkin Publishing House, Ankara, 2024, p. 365.
5. Selek, Yasak İfade Alma ve Sorgu Yöntemleri (“Prohibited Methods of
Taking Statements and Interrogation”), p. 932.
6. Altunkaş A., “Hukuka Aykırı Delil Teorisi Işığında İfade Alma ve Sorgu”
(“Taking of Statements and Interrogation in Light of the Theory of
Unlawfully Obtained Evidence”), Master’s Thesis, Istanbul Bilgi University
Institute of Social Sciences, Istanbul, 2006, p. 175.
7. Kaymaz S., Uygulamada ve Teoride Ceza Muhakemesinde
Hukuka Aykırı (Yasak) Deliller (“Unlawful (Prohibited) Evidence in Criminal
Procedure in Practice and Theory”), Seçkin Publishing House, Ankara, 1997,
p. 122.
8. Judgment of the European Court of Human Rights in Merabishvili v.
Georgia [GC], Application No: 72508/13, 28.11.2017.
9. Altunkaş, Hukuka Aykırı Delil Teorisi
Işığında İfade Alma ve Sorgu (“Taking of Statements and Interrogation in
Light of the Theory of Unlawfully Obtained Evidence”), pp. 185–186.
10. Karaaslan R., “Soruşturma Organları Hesabına
Hareket Eden Özel Kişilerin Eylemlerinin Kamu Makamlarına Atfedilebilirliği –
İfade Almada Yasak Usul Olan ‘Aldatma’ Örneği Üzerinden Bir İnceleme” (“The
Attributability of the Acts of Private Persons Acting on Behalf of
Investigating Authorities to Public Authorities – An Analysis through the
Example of ‘Deception’ as a Prohibited Method in Taking Statements”),
Ankara Hacı Bayram Veli University Faculty of Law Journal, Vol. XXV, Issue: 2,
2021, p. 560, fn. 19.
11. Centel N. - Zafer H., Ceza Muhakemesi Hukuku (“Criminal
Procedure Law”), 21st Edition, Beta Publishing House, Istanbul,
2022, p. 278.
12. Altunkaş, Hukuka Aykırı Delil Teorisi Işığında
İfade Alma ve Sorgu (“Taking of Statements and Interrogation in Light of the
Theory of Unlawfully Obtained Evidence”), p. 185, fn. 508.
13. Toroslu N. - Feyzioğlu M., Ceza Muhakemesi
Hukuku (“Criminal Procedure Law”), 22nd Edition, Savaş Publishing
House, Ankara, 2023, p. 225.
14. Özbek V. Ö. - Doğan K. - Bacaksız P., Ceza
Muhakemesi Hukuku (“Criminal Procedure Law”), 18th Edition,
Seçkin Publishing House, Ankara, 2025, p. 222.
15. Altunkaş, Hukuka Aykırı Delil Teorisi Işığında
İfade Alma ve Sorgu (“Taking of Statements and Interrogation in Light of the
Theory of Unlawfully Obtained Evidence”), p. 186, fn. 510.
16. Decision, bearing the Basis number 2003/3819
and the Decision number 2004/299 and dated 16.02.2004, of the 1st Criminal
Chamber of the Court of Cassation.
17. Dissenting opinion written to the decision,
bearing the Basis number 2014/16063 and the Decision number 2015/16872 and
dated 04.05.2015, of the 7th Criminal Chamber of the Court of
Cassation.
18. Altunkaş, Hukuka Aykırı Delil Teorisi Işığında
İfade Alma ve Sorgu (“Taking of Statements and Interrogation in Light of the
Theory of Unlawfully Obtained Evidence”), pp. 175–176, fn. 480.
19. Decision, bearing the Basis number 2019/213
and the Decision number 2021/118 and dated 17.03.2021, of the General Assembly
of the Criminal Chambers of the Court of Cassation.
20. Selek, Yasak İfade Alma ve Sorgu Yöntemleri (“Prohibited
Methods of Taking Statements and Interrogation”), p. 947.
21. Centel - Zafer, Ceza Muhakemesi Hukuku (“Criminal
Procedure Law”), p. 278.
22. Demirbaş, Şüphelinin İfadesinin Alınması (“Taking
of the Suspect’s Statement”), p. 361.
23. Selek, Yasak İfade Alma ve Sorgu Yöntemleri (“Prohibited
Methods of Taking Statements and Interrogation”), p. 945.
24. Decision, bearing the Basis number 2005/7-144
and the Decision number 2005/150 and dated 29.11.2005, of the General Assembly
of the Criminal Chambers of the Court of Cassation.
25. Ünver Y. - Hakeri H., Ceza Muhakemesi Hukuku (“Criminal
Procedure Law”), Vol. III, 22nd Edition, Adalet Publishing House,
Ankara, 2024, p. 1821.
26. Altunkaş, Hukuka Aykırı Delil Teorisi Işığında
İfade Alma ve Sorgu (“Taking of Statements and Interrogation in Light of the
Theory of Unlawfully Obtained Evidence”), p. 211.
