However, objecting to a piece of evidence is not the same as demonstrating its unlawfulness. An effective defense shows together the procedural act, the safeguard that was violated, the finding obtained through that violation and the role the finding plays in the accusation. Once the evidence is excluded, what the remaining lawful evidence can prove is examined separately. For this reason, not every finding of unlawful evidence automatically leads to an acquittal; an acquittal for insufficient proof and a dismissal of the case are also different judgments.
What does the prohibition on unlawfully obtained evidence protect?
While investigating the truth of a criminal accusation, criminal procedure also supervises the exercise of public power. Inviolability of the home, confidentiality of communications, protection of personal data, the right not to be compelled to make self-incriminating statements and the right to the assistance of defense counsel are at the center of that supervision. The seriousness of the offense does not replace the decision, the authority or the procedural safeguard that the law requires.
Constitution art. 38/6 sets out the basic prohibition. CMK art. 206/2-a provides for rejecting the presentation of evidence obtained unlawfully; art. 217/2 provides that an offense may be proved with lawfully obtained evidence. CMK art. 230/1-b requires a conviction to state the evidence that was accepted and rejected, and to separately identify any unlawfully obtained evidence in the file. The prohibition therefore matters not only at the moment the evidence is first obtained; it also binds the evaluation at the hearing and the reasoning of the judgment. 1 2
The court’s intimate conviction also forms within these limits. A strong impression of a recording does not make it unnecessary to examine whether that recording is lawful. İsmail Çınar’s study of the judgment-making process likewise stresses that obtaining, preserving, discussing and evaluating evidence cannot be separated from one another. A judge’s personal belief cannot take the place of lawful evidence that has been discussed in the proceedings. 9, pp. 352–354
How are unlawfulness, reliability and probative value distinguished?
That a telephone recording was lawfully made does not show that it necessarily belongs to the right person. That an image has not been altered does not by itself make the way it was obtained lawful. When the defense explains these distinct problems separately, the court is prevented from brushing aside the legal objection by answering only the question of technical accuracy.
| Area of review | Core question | What the defense should focus on |
|---|---|---|
| Lawfulness | By what authority and method was the evidence obtained? | The decision, the written order, duration, scope and procedural safeguards |
| Reliability | Does the record in the file accurately reflect the original data? | The original recording, integrity, missing parts, technical examination |
| Probative value | Which act of the defendant does this data show? | Attribution, context, the elements of the offense and the other evidence |
For example, if the source of a screenshot is unclear, this is first a problem of reliability and attribution. If it emerges that the image was captured by entering a person’s account without permission, a separate discussion of unlawfulness in the method of obtaining arises. Both objections may be raised in the same file. If one is rejected, the other does not disappear by itself.
It cannot be said that the whole file is invalid because of every missing signature, date error or unexplained act. First, it must be determined which statutory safeguard the deficiency concerns and how it affected the obtaining of the evidence. Conversely, describing the violation of a safeguard merely as a “formal deficiency” does not make it trivial. Rules such as the presence of independent persons during a search, in particular, aim to prevent arbitrariness in interferences that are hard to review afterwards.
In which situations is evidence obtained through search and seizure disputed?
Authority, timing and scope are examined as much as the existence of a decision
The authority regime in CMK art. 119 matters depending on where the search is conducted. In homes, workplaces and closed spaces not open to the public, a judge’s decision or, where delay would be prejudicial, a written order of the public prosecutor is required. The authority given to the senior police officer is not a general power of search for these places. At the same time, it would not be right to reach the same conclusion for every act without a judge’s decision without examining the special cases in the statute. 2, arts. 116–119
In reviewing the file, the date, time, place or person to be searched, the subject of the search and the validity period of the decision should be compared with the act actually carried out. A decision naming a different address, an act carried out after the decision’s period has expired, or an examination exceeding the scope of the decision each requires its own justification. It should not be enough that the words “delay would be prejudicial” are written in the record; the record must explain what concrete danger did not allow waiting for a judge’s decision.
A preventive search, a judicial search and a check carried out during a stop are also not the same act. The purpose of the act matters as much as its name, as do the information available at the start and the scope of the interference. The heading of a record alone does not determine the legal regime to apply. The defense should show chronologically at what stage of the incident a specific suspicion of an offense arose.
Court of Cassation General Criminal Assembly: Does a later seizure approval cure the search?
The decision of the General Assembly of Criminal Chambers of the Court of Cassation (Yargıtay Ceza Genel Kurulu) dated November 25, 2014, E.2014/166, K.2014/514 is a concrete example of this distinction. In that case, the judge had rejected the request for a search; the next day, on the basis of the same information, a search was carried out under a prosecutor’s order justified by the claim that delay would be prejudicial. A weapon was found at the place searched for drugs. Assessing the fact that no new and concrete urgency was shown, the Assembly held the search unlawful. 3
A seizure approval given afterwards did not retroactively make the earlier unlawful search lawful. The decision also examined the changes within the remaining statements and the fact that they were not supported by other lawful evidence; the decision of the trial court, which had insisted on its acquittal judgment, was affirmed. The dissenting opinions contain different assessments regarding the lawfulness of the search and the probative value of the confession.
The value of this decision for the defense lies in its method of review, which rejects the thinking that “if a weapon was found, the search is correct.” First the legal basis of the interference is discussed, then the remaining evidence. It cannot be concluded from the decision that every confession is worthless or that every search error necessarily leads to an acquittal.
Why do search witnesses matter?
CMK art. 119/4 provides that when a search is conducted in a home, workplace or other closed place without the public prosecutor present, two persons from the neighborhood council (ihtiyar heyeti) or the neighbors of that place must be present. The presence of these persons during the search is not the same as their merely signing the record afterwards. The timing of their presence, the sections searched and the way the record was drawn up should be examined concretely. 2
The defense should not be content with checking that signatures exist. It can be clarified who the signatories are, when they joined the search and whether they saw the stage at which the finding was located. The question to the officer who was a witness, “Which independent persons were inside when the search began?”, allows a more specific examination than an abstract claim of irregularity.
How does the Constitutional Court assess unlawfully obtained evidence?
Orhan Kılıç: The decisive effect of an unlawful search on a conviction
The Constitutional Court General Assembly’s Orhan Kılıç decision, Application No. 2014/4704, February 1, 2018, directly concerns a criminal conviction. In a search of a home carried out without the required decision or written order, narcotics and a precision scale were obtained. The applicant was convicted in drug-trafficking proceedings in which these findings were used. The Constitutional Court assessed together the unlawfulness of the search and the decisive role of the evidence in the judgment. 4, §§42–56
The majority stated that what was found in the search was the essential basis of the conviction, and that the police accounts and the statements on drug use did not resolve the problem of proof for the trafficking offense in the specific file. The failure to examine the defense’s objections to the search adequately was also part of the assessment. The result is a violation of the right to a fair trial and a retrial; it is not an acquittal issued directly by the Constitutional Court.
The dissenting opinion of four members, on the other hand, focused on the existence of other evidence and on the applicant’s ability to object to the evidence. This divergence shows why merely describing the unlawfulness of the evidence in a petition may not be sufficient. It must also be shown which finding of the judgment relied on that evidence.
The Constitutional Court’s standard of review does not allow courts to use unlawful evidence
The important distinction in the Orhan Kılıç decision is this: the criminal court is obliged to apply the evidentiary prohibition in the CMK. The Constitutional Court, in an individual application, does not act like an appellate authority that re-weighs every piece of evidence; it examines whether the proceedings as a whole were fair. The decisiveness of the evidence, the opportunity for the defense to object and the court’s reasoning matter in this second review. 4, §§43–51
Accordingly, no conclusion such as “unlawful evidence can be used if it is not the only evidence” can be drawn. That the Constitutional Court found no violation in an application and that a criminal court may use evidence under national law are not the same legal question. When the defense preserves this distinction, it can build the right reasoning both in the first-instance proceedings and in the individual application.
Yaşar Yılmaz: Are the record and the expert report independent evidence?
The Constitutional Court’s Yaşar Yılmaz decision, Application No. 2013/6183, November 19, 2014, although often cited, concerns not a criminal conviction but a compensation case brought because of animal pelts and similar items found in a search. The safeguard on search witnesses in Law No. 1412, which was in force on the date of the search, was not observed. Presenting the decision as if it were a present-day criminal file, without stating this date and the type of proceedings, would be misleading. 5
The Constitutional Court found that the findings obtained in the search were decisive for the judgment. The existence of a record concerning these findings and of an expert report determining their value did not mean that they were separate and independent sources of proof. The Court decided that the right to a fair trial had been violated and ordered a retrial. 5, §§54–59, 63
The methodological contribution of the decision to criminal defense is clear: that the same finding is repeated in the record, in the expert report and in the indictment does not show that there are three independent pieces of evidence. The source of information of each document must be examined separately. Tülay Kitapçıoğlu Yüksel’s study on this decision also addresses the need to assess separately the existence of a search warrant and its lawful execution. 8, pp. 109–111, 127–128
Which statements cannot be used in an interrogation or examination?
A statement taken by a prohibited method does not become valid through later consent
CMK art. 148 prohibits interferences that impair a person’s free will, such as torture, ill-treatment, threats, force, exhaustion, deception and the like. Promising an advantage contrary to law also falls within this scope. A statement taken by a prohibited method cannot be treated as evidence even if the person later consents to its use. 2, art. 148/1–3
When this allegation arises in a file, looking only at the statement record is not enough. Records of meetings with defense counsel, check-in times at the detention cell and the hospital, medical reports, recorded footage and when the person first reported the complaint can be investigated. Delay may make the examination harder, particularly because of the retention periods of footage. Requesting that the records be preserved by lawful means and obtained from the relevant authority is therefore important.
Likewise, a first statement that impaired free will and a new statement taken later cannot automatically be treated as identical. The conditions under which the later statement was given and whether the effect of the earlier interference continued are examined. A record stating “he explained of his own accord” is not by itself an answer to the allegation of pressure beforehand.
A separate rule applies to police statements taken without defense counsel
Under CMK art. 148/4, a statement taken by the police without defense counsel present cannot be used as the basis of a judgment unless the suspect or defendant confirms it before a judge or a court. This confirmation requirement is separate from art. 148/3, which concerns statements taken by a prohibited method. An allegation of torture or threats cannot be brushed aside merely by saying that confirmation was made later. 2
Confirmation before the public prosecutor does not replace the requirement of a judge or court stated in art. 148/4. Furthermore, using an unconfirmed police statement taken without defense counsel not on its own but to support other evidence as a basis of the judgment should also be examined under the prohibition on relying on it for the judgment.
The defense should identify which part of the first record is relied on and what exactly the person accepted or denied at the later examination. Instead of being content with the sentence “there are contradictions between the statements,” the usability of the specific statement carried into the reasoning of the conviction should be discussed. Objections concerning the notice of rights in CMK art. 147 and other procedural safeguards should likewise be explained with their own concrete grounds.
What distinctions should be made in telephone, computer and message records?
Seizing a device does not mean the authority to examine all the data in it
Physically taking a device into custody and searching, copying and analyzing the data in it are separate interferences. The decision on which the examination rests, the person and incident it concerns, and its scope and duration must be determined. For acts that fall within the scope of CMK art. 134, the special safeguards provided in that article are observed. The type of device or the heading “phone examination record” cannot be expected on its own to conclude the legal review. 2 7
For the defense, the first need is access that is not limited to the conclusion page of the report. The decision and approval documents, the seizure record, the device’s identifying information, the copying records and the data on which the examination was based should be requested. The integrity of the digital copy, which operations were performed and how the conclusion in the report was reached should lend themselves to expert examination.
That a file is found on a particular device does not always explain who created or used it. Possibilities such as a shared device, multiple accounts, automatic downloads and the context in which a message was transferred can be investigated according to the specific features of the file. Technical integrity, attribution to a person and lawful obtaining are separate headings; one should not be substituted for another.
What does the 2026 annulment decision on CMK 134 change?
The Constitutional Court’s decision dated February 12, 2026, E.2023/128, K.2026/36, is important with respect to CMK art. 134. The decision was published in the Official Gazette (Resmî Gazete) dated May 25, 2026, No. 33264; the entry into force of the annulment provisions was postponed by nine months from publication. This period will expire on February 25, 2027. As of October 10, 2026, the date on which the annulment takes effect has not yet arrived. 7
The majority’s reasoning emphasized in particular the inadequacy of the statutory safeguards concerning the retention, deletion or restriction of processing of personal data obtained after the proceedings become final. Other provisions that could no longer be applied after the annulment of the rules taken as the basis of the review were also included within the scope of the annulment. The procedural rejection decisions given at the initial examination with respect to some phrases should not be interpreted without reading the final judgment as a whole. 7, §§60–73 and the operative part
In the dissenting opinion of five members, the safeguards provided by the existing legislation, the need to retain data for retrial purposes and different possibilities of interpretation were argued. The binding result is the majority’s judgment; the dissent shows on which legal point the debate is concentrated.
This decision does not mean that all digital evidence obtained in the past automatically becomes invalid or that every phone examination is unlawful. The date and conditions of the specific measure, the time the annulment takes effect and any new statutory provisions must be assessed together. The defense should connect the annulment decision to the specific problem in the file concerning access, scope, retention or lack of safeguards.
Interception, identification of communications and message content are not the same
The interception, recording and evaluation of signal information of communications under CMK art. 135 and the identification (tespit) of communications involve different procedural details. Applying the catalogue-offense limitation to all communication data in the same way may lead to an erroneous result. The defense should first determine which measure was applied; then it should examine the offense, suspicion, authority, duration and decision requirements specific to that measure. For evidence obtained by chance, the special provision of art. 138 also matters. 2, arts. 135–138
An HTS record (historical traffic and signal data) is not a sound recording showing the content of a conversation. That one number contacted another number does not by itself prove that the conversation constituted an offense. Location determinations claimed on the basis of base-station data should be examined together with the technical limits of the data and the other findings; a definitive address should not automatically be inferred from them.
The protections concerning the search of a law office and the defense counsel’s office, home and telecommunication devices at their place of residence should be assessed separately. The special safeguards in CMK arts. 130 and 136 cannot be disregarded by an ordinary search or communications decision. Access to information belonging to the defense relationship is not only a matter of private life; it may also affect the possibility of an effective defense. 2
Secret audio recordings and evidence obtained by private persons
Is recording one’s own conversation free in every case?
That evidence is obtained by a private person rather than a public official does not eliminate the lawfulness review. That a person is a party to the conversation matters regarding the purpose and conditions in which the recording was made; it is not a general permission that validates all secret recordings. Entering another person’s account without permission, secretly accessing their device or systematically recording the conversations of third parties are assessed separately.
In the decision of the General Assembly of Criminal Chambers of the Court of Cassation dated June 21, 2011, E.2010/187, K.2011/131, the complainant’s recording of conversations in which an advantage was demanded from him was discussed. The majority distinguished a person’s recording of a conversation to which he is a party, made to preserve evidence of an offense he claims was committed against him, from interception by public authorities under CMK art. 135. The danger of the evidence being lost and the opportunity to apply to the competent authorities were important in the assessment. 6
The Assembly concluded that the recordings should be evaluated and reversed the acquittal. This result is not directly a conviction. The dissenting opinions, on the other hand, emphasized that the recordings were made over a period exceeding five months, that the possibility of applying to the authorities existed and that the conduct was planned. Thus the limits of the exception were seriously debated in the same file.
The decision shows why protecting the evidence of a sudden attack that would otherwise be hard to prove cannot be assessed in the same way as a previously planned, systematic recording activity. In a present-day dispute, quoting a short sentence of the decision is not enough. The beginning of the recording, the course of the incident, the role of the person making the recording and whether other lawful means were available should be set out.
The lawfulness of a recording does not show that its content has been interpreted correctly
Even if a recording is found usable, whether it is complete, whether there are interruptions or additions, the attribution of the voice and the context of the conversation can be examined. If there is a difference between the transcript and the audio file, listening to the original file and the necessary technical examination should be requested. Selecting a few sentences can make the explanation at the beginning of the conversation or the correction at its end invisible.
For messages from a private person as well, the method of obtaining and the probative value are investigated separately. The addressee of a message submitting the correspondence in his possession is not the same act as entering an account by breaking a password. Even so, attribution should not be accepted merely on the basis of a displayed name and profile photo. The aim should be to bring the content into the file by lawful means and, where necessary, to have it checked against its original source and context.
Can other evidence reached through unlawful evidence be used?
The status of a second finding reached through an unlawful act is discussed in the doctrine under headings such as “remote effect” or “fruit of the poisonous tree.” It cannot be said that Turkish law has a general rule that resolves all possibilities in a single sentence. Çınar’s study also shows the debate and the different views. For this reason, it is not correct to present exceptions developed in foreign law directly as settled rules of Turkish law. 9, p. 353
The workable path for the defense is to show the link between the later evidence and the earlier act. From which record was the information first learned? Does the decision for the later act rest on this information? Was the same information previously reached from an independent and lawful source? Comparing the dates and the justifications for the acts in the file makes these questions concrete.
A transcript or expert report prepared on the same unlawful finding does not become an independent source merely because it bears a new date and document number. The assessment in the Yaşar Yılmaz decision is instructive on this point. Conversely, it should not be claimed that another piece of evidence alleged to be independent will automatically be excluded without investigating how it was actually obtained. The strength of the objection depends on showing the link from the file. 5
The evaluation of unlawful evidence alleged to be in the defendant’s favor is also debated in the doctrine. The study by Ersan Şen and Buğra Şahin addresses this debate through evidence in favor of the defendant and the reasons for acquittal; this approach should not be read as a statutory provision or as a judicial result binding on every file. The aim of revealing innocence does not give the defense a new power to collect unlawful evidence. First, it should be requested that the same fact be investigated by a lawful and reviewable means; as for a request to evaluate an existing record, it should be raised by explaining that it is favorable, how it was obtained and the rights that must be protected. 11
How is an objection to unlawful evidence prepared?
Place the concrete act in the file at the center of the objection
An effective petition identifies the act to be examined before presenting a long list of decisions. It should state clearly which record, recording, device or statement is being discussed and which claim in the indictment and the prosecutor’s opinion it is used to support. A general statement such as “all the evidence in the file is unlawful” makes it harder to review the different acts one by one.
A link must be drawn between the legal basis and the facts. If it is argued that there is no decision, the petition should explain which document is missing from the file; if it is argued that the scope was exceeded, the difference between the limit of the decision and the act carried out; if the defense’s examination was prevented, which request was left without result and when. Instead of immediately concluding “it was never issued” about a decision whose document is not seen in the file, it may be requested first that its original and attachments be obtained.
| Act examined | Documents or records that may be requested | Issue to be clarified |
|---|---|---|
| Search of a home | Decision or written order, times of the act, search record | Authority, urgency, scope and those present |
| Digital examination | Decision and approvals, device list, copying and examination records | Limit of authority, access to data and technical reviewability |
| Police statement | Statement and interrogation records, defense counsel and medical records | Free will, assistance of defense counsel and scope of confirmation |
| Audio or message recording | Original file, full content, explanation of how it was obtained | Legal source, integrity, attribution and context |
| Later report or record | Underlying data, appointment and dates of the acts | Independent information or repetition of the same finding? |
Frame the request according to the procedural problem
An objection may contain mutually complementary requests. Obtaining the missing decision, hearing those present at the search, providing access suited to reviewing the digital data, rejecting the presentation of the evidence and not relying on it for the judgment address different needs. It should be stated which request will remedy which problem.
A request for technical examination does not mean giving up the legal objection. For example, while arguing that digital data was obtained unlawfully, if this objection is not accepted, an investigation of the integrity and attribution of the content may also be requested. The conditional relationship of the requests should be written clearly in the petition. In this way, the request for technical examination is not read as an acceptance of the lawfulness of the evidence.
A request that evidence be left out of the evaluation should also be distinguished from a request that it be physically removed from the file, deleted or destroyed. CMK art. 230 provides that unlawful evidence may remain in the file and must be separately identified in the reasoning. If there are special rules on the destruction of particular records, they apply separately. The general evidentiary prohibition is not a uniform procedure requiring every document to be deleted from the file. 2
How is an objection to unlawful evidence effectively presented at the hearing?
In oral defense, staying on one specific act makes the objection easier to follow. First the identity of the evidence, then the safeguard violated, then the document in the file and the requested outcome can be explained. Telling the whole file at once can make a strong procedural problem invisible within other discussions.
For a violation that genuinely exists in the file, the presentation may follow this order: the relevant search record and the date of the act are stated; the limit of authority or scope in the decision is shown; the difference from the act actually carried out is explained; it is requested that the specific finding obtained not be relied on for the judgment. Finally, it is shown which element of the accusation cannot be proved once this finding is excluded. This is a method of presentation; it is neither a quotation from any court decision nor a ready-made defense applicable to every file.
The questions to the officer or expert should investigate specific facts without building a claim as if the answer were already known:
- Which decision or written order was communicated to the officer before the search began?
- If it is stated that delay would be prejudicial, what concrete information was relied on?
- At what stage were the persons who were required to be present during the search present?
- How was it determined that the examined device is the same as the device in the record?
- On what original data does the report rest, and how can the defense examine this data?
- From what source, independent of the contested finding, was the information in the later document obtained?
Having the questions and the requests made to the court entered in the minutes is important for later review. When a request is rejected, the explanation of the grounds for rejection should be requested. Asking questions, discussing the evidence and the provisions on the minutes are considered together. Making the problem concerning the right of defense visible does not require disrupting the order of the hearing or targeting the personal character of the officials. 2, arts. 201, 215–217, 219–222
Which appeal routes are available if the objection is rejected?
It cannot be assumed that there is a separate and immediate objection route for every interim decision on the use of evidence. CMK art. 267 regulates objection to judges’ decisions and, in the cases the law indicates, to court decisions. The appeal route against a decision on a search, seizure or other measure should be distinguished from an objection concerning the evaluation of evidence in the proceedings. Interim decisions affecting the judgment, for which there is no separate route of application, may be reviewed together with the judgment. 2, arts. 267, 272/2, 287
| Route of application | General time limit or stage | Function on this subject |
|---|---|---|
| Objection (itiraz) | Unless a special provision exists, two weeks from learning of the decision | Review of a judge’s or court’s decision open to objection |
| Appeal (istinaf) | Two weeks from notification of the reasoned judgment | Use of the evidence and evaluation of proof in a judgment open to appeal |
| Cassation appeal (temyiz) | Two weeks from notification of the reasoned judgment | Review of unlawfulness in a decision open to cassation appeal |
| Individual application to the Constitutional Court | As a rule, thirty days, calculated from exhaustion of remedies and learning of the final decision | Examination of an alleged violation of a constitutional right, subject to admissibility conditions |
The time limits in the table are the current general rules. Special provisions, limits on appealability, the nature of the notification and transitional provisions for older decisions are examined separately. In particular, it is not correct to automatically apply the new time-limit regime to decisions before June 1, 2024. In an individual application as well, the date on which the final decision was learned should not be disregarded merely because a notification is expected to be made later. 2, arts. 268, 273, 291 and transitional art. 610
CMK art. 289/1-i lists a judgment resting on evidence obtained by unlawful methods among the cases of absolute unlawfulness. When this ground is stated in the appeal petition, it should be shown which part of the reasoned decision relies on the contested evidence. The difference between a record being present in the file and the judgment resting on it is important. Allegations of insufficient reasoning and restriction of the right of defense may also be explained separately if the conditions are met. 2
In an application to the Constitutional Court, merely stating that a statutory article was applied incorrectly may not be enough. In line with the framework in the Orhan Kılıç decision, the decisive effect of the evidence, the defense’s ability to discuss it and the courts’ answers to the objections should be made concrete. Raising for the first time in an individual application complaints that should have been raised in the ordinary routes of appeal may prevent the application from being examined. 4 10
How does the exclusion of unlawful evidence affect the case?
The court first assesses which evidence may be used, and then whether the usable evidence proves the elements of the offense. After unlawful evidence is excluded, other lawful evidence may remain. Its sufficiency is investigated separately with respect to the specific offense and the defendant’s act. Mentioning the existence of other evidence does not mean that it is sufficient on its own.
If it is not established that the defendant committed the alleged offense, acquittal comes into question under CMK art. 223/2-e. That the defendant did not commit the act being established is a different ground for acquittal in the same paragraph. The exclusion of evidence does not automatically turn these two situations into one another. Dismissal of the case, for example because of limitation periods or other grounds stated in the law, is a separate judgment. 2
The unlawfulness of a search, the criminal or disciplinary liability of officials, compensation and the fate of seized items also raise separate questions. Each of these is examined according to its own conditions. In a criminal case, the fact that evidence cannot be relied on for the judgment does not mean that the items alleged to be the subject of the offense will necessarily be returned or that all officials will automatically be deemed to have committed an offense.
The purpose of the defense is not merely to reduce the file by one piece of evidence. It is to determine legally what information the court may rely on and to show the limit of the result that can be built on the remaining evidence. This approach ties the objection to the search, the technical examination and the defense on the merits to the same problem of proof.
Conclusion
An objection to unlawful evidence is one of the areas in which criminal defense most intensively combines knowledge of the file with legal reasoning. An effective objection rests on reasoning that correctly identifies the act, documents the violation and explains the effect of the evidence on the judgment.
The search warrant and the record, the authority for digital examination and the act performed, the first statement and the later examination, and the original recording and the transcript should be examined together. Constitutional Court and Court of Cassation decisions should also be read with their facts, majority reasoning and results. The requirement of proof by lawful evidence is the legitimate foundation of a fair trial and of a conviction.
Frequently Asked Questions
Can unlawfully obtained evidence be used if it shows a real event?
That the content reflects the truth does not by itself cure the unlawfulness in the method of obtaining it. First the applicable evidentiary prohibition is assessed, then the probative value of the usable evidence. Constitution art. 38/6 and CMK art. 217/2 are the basis of this distinction.
If the search warrant does not appear in the file, is the evidence necessarily unlawful?
First, it should be investigated whether the decision or written order actually exists. That a copy is not seen in the file is not the same as its never having been issued. Once the document is obtained, authority, time, place, scope and the statutory conditions of the act are examined.
Is the signature of police officers enough instead of the two persons who must be present at a search?
Where CMK art. 119/4 applies, the function of the neighborhood council members or neighbors named in the law is not the same as the signature of the officials carrying out the act. Whether the public prosecutor was present and where the search was conducted must also be assessed.
Can a police statement taken without defense counsel be used as the basis of a judgment if it is repeated before the prosecutor?
The confirmation under CMK art. 148/4 must be made before a judge or a court. Repetition before the prosecutor does not replace this requirement. In addition, whether the statement was obtained by a prohibited method is examined separately under art. 148/1–3.
Does giving the password to my phone mean I have allowed every kind of examination?
Sharing a password does not mean waiving all statutory authority and procedural safeguards. The purpose of the examination, its scope, the decision and the special provisions to be applied must be determined. A claim that consent was given does not remove the need to investigate the required statutory basis.
Did the annulment of CMK 134 invalidate all digital evidence?
No. A nine-month postponement was set for the annulment provisions in the Constitutional Court’s decision E.2023/128, K.2026/36, and the date of entry into force is February 25, 2027. As of October 10, 2026, that date has not arrived. The specific act, the law applicable in terms of time and any new regulations must be examined together.
Can I secretly record a threat directed at me?
The preservation by a person of evidence of an offense directed at him that could disappear has been assessed in case law under certain conditions. This is not a permission that makes all secret recordings lawful. The course of the incident, other possibilities of proof, the opportunity to apply to the authorities and the scope of the recording are decisive; systematic or provocative recording activities cannot be treated as the same.
Does an expert report make unlawfully obtained data valid?
Preparing a report does not by itself cure the unlawfulness in obtaining the data. It is examined whether the report rests on an independent lawful source or evaluates the same finding. Legal usability and technical accuracy are separate problems.
Is there always a two-week period for an objection to unlawful evidence?
No. An objection to the use of evidence in the proceedings differs from an appeal route against a particular decision. Objection, appeal and cassation appeal each have their own time limits. The defense concerning the evidence should be made concrete at the earliest possible stage, and the relevant appeal time limit should also be protected separately.
If evidence is rejected, must the document be deleted from the file?
Not relying on evidence for the judgment and physically removing or destroying it from the file are not the same act. CMK art. 230 provides that unlawful evidence is to be identified separately in the reasoning. If there is a special destruction provision for certain records, that provision is assessed separately.
Is the exclusion of a piece of evidence enough for an acquittal?
The other lawful evidence is evaluated. If it is not established that the defendant committed the alleged offense, acquittal is required. However, the exclusion of evidence does not lead to an automatic acquittal or dismissal of the case without examining the file as a whole.
When the Constitutional Court finds a violation, is the conviction automatically converted into an acquittal?
No. A retrial may be ordered to remedy the violation and its consequences. In the retrial, the necessary acts are carried out with regard to the reasoning for the violation. The Orhan Kılıç and Yaşar Yılmaz decisions should not be relayed as acquittal judgments issued directly by the Constitutional Court.
Sources
1. Constitution of the Republic of Türkiye, in particular arts. 13, 20–22, 36 and 38/6. Constitutional Court legislation page.
2. Code of Criminal Procedure No. 5271, in particular arts. 116–121, 130, 134–138, 147–148, 201, 206–217, 219–223, 230, 267–273, 287, 289, 291 and transitional art. 6. Ministry of Justice PDF text. With respect to CMK art. 134, the entry-into-force provision of decision [7] below must also be taken into account.
3. Court of Cassation General Assembly of Criminal Chambers, November 25, 2014, E.2014/166, K.2014/514. Search, delay being prejudicial, later seizure approval and evaluation of the remaining evidence. Full text of the decision, De Jure (a session may be required for access). Open-access summary of the decision, Pınar Konaç. The decision is also cited in §27 of the Orhan Kılıç decision.
4. Constitutional Court General Assembly, Orhan Kılıç, Application No. 2014/4704, February 1, 2018; in particular §§42–56, the operative part and the dissenting opinion. Official decision record; full text, De Jure.
5. Constitutional Court First Section, Yaşar Yılmaz, Application No. 2013/6183, November 19, 2014; in particular §§54–59 and 63. Decision concerning compensation proceedings. Official decision record; full text, De Jure.
6. Court of Cassation General Assembly of Criminal Chambers, June 21, 2011, E.2010/187, K.2011/131; majority reasoning, operative part and dissenting opinions. Full text of the decision, De Jure (a session may be required for access); open-access full text, Kazancı.
7. Constitutional Court, February 12, 2026, E.2023/128, K.2026/36; in particular §§60–73, the operative part and the dissenting opinion. Official Gazette: May 25, 2026, No. 33264. Official decision record; full text, De Jure.
8. Tülay Kitapçıoğlu Yüksel, “A Case Review on the Problem of Relying on Evidence Obtained from the Unlawful Execution of a Search Warrant as the Basis of a Judgment” (Arama Kararının Hukuka Aykırı Şekilde İcrasından Elde Edilen Delilin Hükme Esas Alınması Sorunu Üzerine Karar İncelemesi), Istanbul Law Journal (İstanbul Hukuk Mecmuası), 76(1), 2018, pp. 109–131; in particular the sections on the facts and the result. DOI:10.26650/mecmua.2018.76.1.0003. Article page; full text PDF.
9. İsmail Çınar, “A Methodological Look at the Process of Rendering Judgment in Criminal Procedure” (Ceza Muhakemesinde Hüküm Verme Sürecine Metodolojik Bir Bakış), Journal of the Turkish Justice Academy (Türkiye Adalet Akademisi Dergisi), issue 56, 2023, pp. 337–370; in particular pp. 352–354. DOI:10.54049/taad.1374340. Article page; full text PDF.
10. Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court, arts. 45–50. Constitutional Court legislation page; also, for the application of the time limit, the Constitutional Court guide on expiry of time limits.
11. Ersan Şen and Buğra Şahin, “The Order of Examining Unlawful Evidence in the Judgment and the Rejection of Evidence” (Hükümde Hukuka Aykırı Delilin İncelenme Sırası ve Delilin Reddi), June 16, 2026. Views in the doctrine and discussion of practice. Article.