51 repetitions are not 51 pieces of evidence.
A doctor, fourteen people and 51 repetitions of the same sentence
Imagine a doctor. The doctor is accused of membership of a terrorist organisation. In the account of events on which this article is based, the main support of the indictment is the HTS record of the doctor's telephone. According to the record, the doctor's phone shows call records with fourteen people who are under investigation.
In the statement, the doctor says that since the years of compulsory service he has given his mobile number to his patients and that his patients call him. Dozens of people call the phone every day. Those fourteen people are among thousands of callers.
The HTS record does not show the content of the calls; it contains data on when, in which direction and for how long communication took place between telephones. The indictment, however, calls these people, who are reported to have no conviction against them yet, "members of the organisation", and says:
“The defendant's being in contact with a large number of members of the organisation is contrary to the ordinary course of life.”
Two assumptions are stacked on top of each other in this sentence. First, the guilt of the callers is treated as if it were established. Then this assumed guilt is transferred to the doctor who spoke with them. The concrete conduct attributed to the doctor in the account is answering the phone. For a doctor who gives his number to everyone, being called a lot is not unusual; it is the very ordinary.
The objection here is not that relationships with people who have no conviction cannot be investigated. Of course they can. The objection is to using a possibility that needs to be investigated as if it were an already settled fact, and then charging it to another person as guilt. Moreover, even if the guilt of the callers were established by judgment, the doctor's guilt does not follow from it automatically. The principle of personal responsibility in Article 38 of the Constitution and Article 20 of the Turkish Criminal Code (TCK) prevents precisely this automatic transfer. [1]
Criminal responsibility is not contagious. Another person's offence does not pass across the telephone line to the other end.
According to the account given, in the indictment in which the doctor was also included, the phrase "contrary to the ordinary course of life" was used exactly 51 times for different people and entirely different events. The claim at the centre of the criticism is that gaps which should be explained with concrete evidence are being closed with these repetitions.
A phrase being used 51 times does not by itself show unlawfulness. But if a separate fact, a separate assessment and a person-specific connection cannot be shown for each use, the repetition has begun to take the place of reasoning. In such a case the matter ceases to be a question of style in a single indictment; it concerns the conception of proof on which criminal proceedings are built.
Interpreting evidence, or taking the place of evidence?
“The ordinary course of life” is an expression used by law enforcement, prosecutors and judges when they resort to general life experience. When used correctly, it is a legitimate tool of reasoning.
Let us give an example. At three in the night, a person caught on camera leaving a shop with a broken door with a cash box in hand says, “I found the box on the ground, I was taking it to its owner.” The court may say that this explanation does not fit the ordinary course of life. Because it already has concrete evidence: the broken door, the camera footage, the box in the person's hands. Life experience is used in assessing this evidence together; the person's explanation too is discussed within all the circumstances of the event.
The problem begins when this order is reversed. There is no evidence to show the elements of the offence, or the existing evidence is insufficient to establish that connection. The gap is then sought to be filled with the sentence "contrary to the ordinary course of life". The phrase is no longer used to interpret evidence but to stand in for proof that does not exist.
A single question is enough to see the difference: What is the fact that carries this assessment?
A conclusion can be drawn from the footage of the person carrying the box. But in an event where there is no footage, witness, content of conversation, or other concrete link showing the same purpose, the missing fact cannot be produced by saying "this seems more logical to us".
Circumstantial evidence is also evidence. Not every offence has to be proved by camera footage or a confession. But how the conclusion drawn from circumstantial evidence was reached with that evidence must be explained. Reasoning can establish the relationship between pieces of evidence; it cannot make an event that cannot be derived from the evidence be accepted as having happened merely by assumption.
The call is recorded; which element of the offence is recorded?
In the doctor example, two separate propositions are being confused: "A telephone call was made with these people" and "These calls were made for organisational purposes." The first proposition can be verified with communication data. For the second, a concrete basis and a reviewable reasoning are needed separately.
"Called" is not the same as "gave instructions". "Talked" is not the same as "established an organisational relationship". "Knows" is not the same as "took part in the offence". The adjective "organisational", added to the HTS record afterwards, carries a conclusion that is not in the content of the record itself. The duty to explain the basis of this conclusion lies with the authority that uses the adjective.
The frequency of communication, its timing, the manner of calling, the parties' locations and other evidence can of course be assessed. But each of them must be linked to the specific person's conduct and to the alleged offence. The sentence "there is contact between them" is not an answer to the question of what the relationship means; on the contrary, it is the beginning of the question that has to be answered.
In the Murat Albayrak decision of the Plenary Assembly of the Constitutional Court (AYM), the technical analyses, comparisons, other information and defence facilities relating to certain payphone calls were examined together. The Court did not, in that case, treat the use of HTS data as the sole or decisive evidence in the conviction as in itself contrary to the right to a fair trial. It is therefore not accurate to frame the criticism as "HTS can never be sufficient". The real question is what the record proves in the specific case and by what reasoning the inference is made. [2]
In the doctor example too, the issue is not the existence of the record. The issue is that a move from a communication record to membership of an organisation is possible without the explanation of professional relationships being discussed.
Fourteen people: fourteen out of what whole?
The expression "talked to fourteen people" may by itself create the impression of a large number. Yet the meaning of this number depends on over what period of time, and out of how many people in total the communications with whom it was selected.
Did these people call the doctor, or did the doctor call them? Did the calls fall within a single day or span years? Is there a repeating pattern? Is there an explanation consistent with the doctor's relationships with patients? Is the whole of the examined period shown, or only the part selected for the accusation?
To say "a large number" without answering these questions is a claim of magnitude that has not been compared. When certain people are picked out of thousands of callers and only those names are written side by side, the whole of the person's life is lost; what remains is a selected picture.
Of course, not every relationship is innocent automatically merely because its proportion in the total is low. But a number, without showing the proportion, time and context, cannot be incriminating in itself either. Removing the ordinary context from the file first and then declaring what remains extraordinary is not a sound assessment of evidence.
51 repetitions are not 51 pieces of evidence
Repeating the same opinion does not turn that opinion into evidence. Just as a witness saying the same thing 51 times does not make 51 witnesses, writing an assessment 51 times does not make 51 pieces of evidence. As the number of repetitions increases, what may become visible is not the strength of the indictment but the unexplained need for evidence.
Under Article 170/4 of the Code of Criminal Procedure (CMK), the events constituting the alleged offence must be explained in the indictment in connection with the existing evidence. It must therefore be possible to understand what concrete act is charged to the person, which piece of evidence shows that act, and how the act is linked to the accusation. The phrase "contrary to the ordinary course of life" can take the place of none of these. It is neither the defendant's act nor evidence, nor by itself an element of the offence. [3]
In the poor use of this formula, a loop of the following kind is generally set up:
The defendant must have committed an offence, because his conduct is not ordinary.
His conduct is not ordinary, because it is thought that the defendant committed an offence.
First a belief in guilt forms. The defendant's conduct is then regarded as "extraordinary" in accordance with that belief. His explanation is rejected on the same reasoning. Finally, the fact that the explanation was rejected is presented as a new fact confirming the accusation. The reasoning goes round on itself.
Yet repeating the same assumption in different sentences does not create independent confirmations. When a telephone record is called first "contact", then "organisational contact", then "an indicator of allegiance", there are not three separate pieces of evidence. The same record has been described with three different labels. Renaming a fact with the name of the offence is not proving that the offence was committed.
An indictment is not the file of a person's entire life
The second part of CMK Article 170/4, which often stays outside the debate, is also important. The law says that the indictment shall "not include information that has no connection with the events constituting the alleged offence and with the evidence of the offence". This provision was added to the article in 2021 by Law No. 7331. [4]
The meaning of this provision is not merely that a short and orderly text be prepared. It is also a limit against the whole of a person's social life, all acquaintances and all choices being piled up to create an impression of guilt.
Listing in succession a person's school, bank, friends, meetings attended and telephone directory does not remove the need to explain the connection of this information to the alleged offence. An indictment is not a text saying "we do not like this person's life". It is a procedural document in which the specific acts alleged to constitute an offence must be explained with their evidence.
Information whose connection with the accusation is not shown does not merely crowd the text. It can also create in the reader the thought, "since so much has been written, there must be something". Yet the volume of a file is not the measure of proof. Describing a person's life in a hundred pages does not take the place of explaining the single fact that shows an element of the offence.
Let us test the accusation in reverse: What would the defendant have had to do for it to count in his favour?
To see the soundness of the logic of an accusation, it is not enough to look only at the conclusion it reaches. One must also ask in what situation it could abandon that conclusion.
The following are not reasons taken from a particular file but counter-examples that test the way of thinking being criticised:
- If, when the person answers the phone, he "established contact", and when he does not, he "concealed contact", which conduct will be assessed in his favour?
- If, when he talks a lot, his "relationship is intense", when he talks little he is "cautious", and when he does not talk at all he "communicated through another channel", what claim is the telephone data able to test?
- If, when he gives a detailed explanation, he "prepared his defence", and when he stays silent he "cannot explain", how will the right of defence be exercised?
- If, when he remembers an old conversation, he "has memorised it", and when he does not, he "is giving an evasive answer", is there a place for an honest answer in this order?
These questions do not say that every opposite conduct has the same value in every circumstance. The same act can carry different meanings in the context of different evidence and different circumstances. The problem is the meaning being changed not according to the evidence but according to a guilty conclusion chosen in advance.
If every possibility confirms guilt, the accusation is not being investigated; it is being protected.
The doctor's giving his phone to patients may also be a clear indicator of professional accessibility. Accepting the same situation as a secret organisational relationship without investigating this explanation is not making a choice among facts; it means seeing only the part of the facts that suits the accusation.
“Defence aimed at escaping the charge”: What, then, was the defence supposed to aim at?
Alongside the formula "contrary to the ordinary course of life" there is another expression to be considered: "the defendant's defence being aimed at escaping the charge..."
That a person who maintains he did not commit the offence wishes not to be convicted is the ordinary consequence of the right of defence. That is also the aim of a person who says he is wrongly accused. This aim does not show that his defence is false. Just as the prosecution's requesting a conviction does not by itself make its claim true, the defendant's requesting acquittal does not make his explanation untrue.
With which verified fact does the defence conflict? Which part of it has been shown to be contrary to the truth? What investigation has been carried out? The expression "aimed at escaping the charge", used without explaining these, begins to make the very fact that a defence was made look suspicious, instead of discussing the content of the defence.
In the AYM's Eşref Bingöl decision, the applicant had maintained that he had given the money coming into his account to a friend and had provided information that could help find this person. The local court assessed the defence as contrary to the ordinary course and aimed at escaping the charge, and also rejected the relevant requests for investigation without showing sufficient concrete reasons. The AYM held that, because the defence was thereby placed at a disadvantage in these circumstances, the principles of equality of arms and adversarial proceedings had been violated. The Court also stated expressly that a decision of violation does not mean acquittal. [5]
The conclusion that can be drawn from the decision for the purposes of this article is clear: Not examining an explanation favourable to the defendant is not refuting it. Rejecting the defence is not proving the charge.
A defendant's explanation may be found inconsistent; these inconsistencies may be assessed together with the other evidence. But it cannot be written, into the gap left by an explanation that has been rejected, that the offence has been proved.
A requirement to prove innocence cannot be created
The gravest consequence of this formula is the shifting of the burden of proof. What the prosecution must show is what concrete act the person carried out and on what evidence this is based. Once the formula comes into play, however, the logic becomes: "This conduct does not seem ordinary to us; so let the defendant prove that his conduct had an innocent reason."
Thus the principle that "everyone is innocent until proven guilty" is silently turned into the conception that "everyone is guilty until he proves his innocence".
The rule belonging to the Roman jurist Paulus, found in the Digest, reads in English as follows:
“The burden of proof lies on the one who asserts, not on the one who denies.” [6]
We cannot treat this historical rule as identical in every detail to present-day criminal procedure. But the direction it points is clear: advancing a claim is not by itself sufficient to impose on the other side the task of proving the opposite.
In the 1935 decision in Woolmington, Lord Sankey likewise described the prosecution's bearing the duty of proving guilt as the "golden thread" running through English criminal law. The key statement in the decision reads:
“It is the duty of the prosecution to prove the prisoner's guilt.” [7]
To expect the doctor to remember every call over the years one by one, to find every patient again and to prove the innocent content of every conversation may amount to shifting onto the defendant the burden of showing that the communication constituted an offence. A person's being unable to explain a conversation today does not explain that he committed an offence in that conversation.
In Turkish criminal procedure the court has the power to investigate. It is also possible for the defence to submit evidence and to request investigation in its favour. None of this means that the defendant is placed under an obligation to prove his innocence. Exercise of the right to remain silent likewise cannot be put in the place of missing evidence of the offence. [3]
A gap in the defendant's explanation cannot be evidence of the charge
The European Court of Human Rights (ECtHR) decision in Telfner v. Austria makes this problem concrete. In a traffic accident it had not been determined who was driving the vehicle. The national courts started from the assumptions that the main user of the car was the applicant and that he had not come home that night. The ECtHR assessed expecting an explanation from the applicant, without a situation sufficiently supporting the charge having been presented, as shifting the burden of proof onto the defence, and held that the presumption of innocence had been violated. [8]
This decision does not mean that every circumstantial inference is prohibited. The limit it shows is this: evidence supporting the charge must be presented first; the defendant's not giving an explanation cannot by itself complete a charge that has not been built.
The same question must be asked in the doctor example: is there evidence showing the organisational content of the call, or is there only the thought that the doctor has not sufficiently explained the contrary? Confusing these two situations silently leaves the responsibility of proof with the defendant.
A gap in the defendant's explanation cannot build the link that the prosecution has not built.
Sufficient suspicion for an indictment; proof of the offence for a conviction
For the criticism to be directed at the right place, an important distinction also needs to be preserved. Drawing up an indictment and giving a judgment of conviction are not the same stage. CMK Article 170/2 requires that the evidence gathered constitute sufficient suspicion that the offence was committed. At the indictment stage the level of proof of a conviction is not yet required. [3]
But sufficient suspicion does not mean suspicion without reasons. The accusation must rest on verifiable facts, be linked to the person's act, and be explained with the results of the investigation. The thresholds differ; the requirement to rest on evidence is common.
At the end of the trial, if it is not established that the alleged offence was committed by the defendant, an acquittal is given under CMK Article 223/2-e. For this situation the law does not require the defendant to have separately proved his innocence. [9]
The well-known statement of the English jurist William Blackstone expresses the idea behind this choice:
“It is better that ten guilty persons escape than that one innocent suffer.” [10]
This saying does not mean that the offence is unimportant. It expresses that criminal justice cannot treat the danger of convicting an innocent person as an ordinary margin of error. The distance between "he may be guilty" and "it is established that he committed the offence" is as important as a person's liberty.
The prosecutor's duty is not merely to accumulate possibilities against the suspect
The seriousness of an investigation cannot be measured merely by how many incriminating possibilities it lists. How honestly it investigates the facts that weaken or eliminate those possibilities is equally important.
CMK Article 160/2 places on the public prosecutor the duty to collect and secure evidence both for and against the suspect. CMK Article 170/5 also provides for matters in the person's favour to be put forward in the conclusion part of the indictment. Evidence in the person's favour is not a surplus that the defence will try to add to the file later; it is the investigation's own responsibility. [3], [11]
George Sutherland, a justice of the United States Supreme Court, describes the prosecution's relationship with justice in the Berger v. United States decision with the following expression:
“Not that it shall win a case, but that justice shall be done.” [12]
This is not a saying to be presented as a foreign decision binding for Türkiye. But it strongly explains the nature of the prosecutor's public duty; and it invites thinking in the same direction as the duty to collect evidence in the person's favour in our own law.
The doctor's defence that he was called by his patients is not a sentence to be written in the margin of the file and passed over. Whether he gave his phone to his patients, whether the timing and intensity of the calls are consistent with his professional life, and whether the callers have known patient relationships can be investigated. The scope of the investigation must also be set within limits that are appropriate to the concrete allegation, necessary and respectful of people's privacy.
When it is said "his defence was not believed" without these possibilities having been investigated, the failure to investigate is turned against the defence. The uncertainty of an explanation that the State did not investigate cannot be written down as the defendant's guilt.
Two and a half centuries back
In the development of modern criminal procedure, the criticisms directed at the arbitrariness of the inquisitorial procedure and at methods that presume a person's guilt from the outset occupy an important place. Coming to terms with a conception in which reputation, surroundings and suspicion come before proof was not completed in a day.
The Italian jurist Cesare Beccaria, in the section of his work On Crimes and Punishments, published in 1764, in which he discusses torture, writes:
“A man cannot be called guilty before the sentence of the judge.” [13]
This sentence is one of the best-known historical statements of the principle we know today as the presumption of innocence. The decisive point in Beccaria's words is the separation of the existence of an accusation from the establishment of guilt.
Let us look at the doctor example through this principle and Paulus's rule on the burden of proof. In the example given, the guilt of persons against whom there is as yet no conviction is taken out of the discussion; then this acceptance is used against the doctor. The doctor, too, is expected to prove that the conversations were innocent. Thus both the difference between accusation and judgment and the responsibility between claim and proof become blurred.
Using the "contrary to the ordinary course of life" formula in this way is therefore not merely bad legal technique. It brings criminal proceedings closer to a conception in which people are assessed, before their concrete acts, by their surroundings and the people they talk to.
That more than two and a half centuries have passed does not show that this mentality has disappeared on its own. The progress of law is measured less by the age of its principles than by how faithfully they are adhered to in a concrete file.
Not everyone's life is ordinary in the same way
Whether a conduct is "ordinary" varies according to whom and under what circumstances you look at. Economic situation, family relationships, profession, surroundings, belief, fear, ignorance or merely personal preference can explain many forms of conduct that look strange at first sight.
A doctor's relationship with patients, a lawyer's with clients, a journalist's with sources and a tradesman's with customers cannot be assessed by the same yardstick. A lawyer's frequent meetings with persons accused of offences is a consequence of the profession. A journalist's asking questions of people the public views with suspicion may be part of news research. A profession does not give a person immunity; but treating the contacts a profession produces as indicators of an offence requires more than the contact itself.
More striking is the same conduct being named differently according to the person. In the way of assessment we are criticising, ordinary everyday conduct is redefined and presented with incriminating meanings:
- Sending money to a friend: "organisational solidarity".
- Attending a meeting: "organisational activity".
- Opening an account at a bank: "following instructions".
- Speaking to a person on the telephone: "contact".
- Mediating for a job: "organisational allegiance".
The same conduct may be a natural part of the ordinary course of life for other people. What must be examined here is the concrete basis of the label added to the conduct. What distinguishes the money transfer from a debt payment? What shows the meeting's connection with the offence? What shows that the account was opened on instruction and not by personal choice? How was it concluded that the conversation was organisational and not professional?
When these questions are not answered, the movement is not from the conduct to the person but from the person to the conduct. First the person is placed in a category; then the ordinary relationships in his life are renamed as evidence of that category. In this way "the ordinary course of life" ceases to be an objective rule of experience and turns into a yardstick of accusation that varies by person.
Even if we accept that a conduct is truly extraordinary, the result does not change. Being extraordinary does not by itself constitute an offence. Strange conduct may give rise to a suspicion that needs to be investigated. The prosecution may investigate this suspicion and collect new evidence. But it cannot, and should not, present a suspicion that needs investigation as proof found at the end of the investigation.
The opposite is also true: that a conduct is frequently seen in everyday life does not show that it can never be related to an offence. The same money transfer may be a debt payment in one file and the financing of an offence in another. What will make the distinction is not the outward appearance of the conduct but its concrete context, purpose and evidence.
A general narrative about an organisation does not replace specific proof about the individual
Long explanations about the structure, aims and history of an organisation do not by themselves show that a particular person knew and embraced those aims. A link between the general narrative and individual responsibility has to be established separately.
The Grand Chamber judgment of the ECtHR of 5 May 2026 in Yasak v. Türkiye is important for this distinction. The Court required that, in moving from the applicant's activities in the field of education to the mental element of the offence of membership of an organisation, an assessment specific to the person and the relevant period be made. In this file, where the activities attributed to the applicant may have ended in 2014, assessing intent within the conditions of the relevant period was particularly important. It determined that general explanations about the development of the organisation were not sufficient to show what the applicant knew and for what purpose he acted. It held that Article 7 of the Convention had been violated because an individualised assessment had not been made. [14]
The decision does not prohibit inferring intent from circumstantial evidence. It requires the inference to be built on the person's acts, knowledge and the time at which the acts took place. That the aims of a structure revealed later were also known to the person in the past cannot be assumed without person- and period-specific reasoning.
Returning to the doctor example: where is the concrete link between the identity of the caller and the doctor's intent? Which part of the general organisational narrative shows what the doctor did in which conversation? With which personal act of his do others' acts combine?
Writing a hundred pages about an organisation does not take the place of reasoning showing that the person knowingly and willingly joined the organisation.
“When the contents of the file are evaluated together”: But how were they evaluated?
“Contrary to the ordinary course of life”, “a defence aimed at escaping the charge”, “when the contents of the file are evaluated together”, “explanations not found sincere”… None of these expressions is a forbidden phrase on its own. The problem is that they turn into closing sentences that make it look as if a concrete assessment had been made.
Evidence is of course evaluated together. Facts that individually carry limited meaning can support one another once the relationship between them is explained. But this has to be shown. Which piece of evidence fills which gap? How is which contradiction resolved? Do the records said to confirm one another really rest on separate sources, or do they repeat the same initial assumption?
CMK Article 217 requires the judge to base the decision on evidence brought to the hearing and discussed in his or her presence; Article 230 requires evidence to be discussed and assessed in the reasoning of a judgment of conviction. Intime conviction (vicdani kanaat) is not a field of personal intuition that removes the obligation to give reasons. [3], [15]
"I did not believe" points to a conclusion. The reasoning shows why it was not believed. "I did not find it ordinary" is an assessment. The reasoning sets out which concrete fact excluded which explanation and why.
The reasoning is not the place where the authority announces its opinion; it is the place where it opens to review how that opinion was formed.
Questions to be put to every “ordinary course” sentence
So that the criticism does not remain merely a feeling of objection, concrete questions need to be asked wherever this formula is met:
- What exactly is the conduct said to be extraordinary? Is the person's act being shown, or is only his surroundings being described?
- By what evidence was this conduct established? Have the fact shown by the evidence and the conclusion drawn from it been separated?
- Is the life experience invoked appropriate to this person's profession, circumstances and the time of the event?
- Why were professional, family or other reasonable explanations excluded? Were these explanations really investigated?
- Which element of the offence is established by this fact? How is the move from communication to intent or membership made?
- Has it been explained why the defence was not accepted, or is the rejection of the explanation being used as proof of the offence?
- Instead of the prosecution explaining the charge, is the defendant expected to prove his innocence?
- Would the same reasoning also be applied to another person who carried out the same conduct?
- If the sentence "contrary to the ordinary course of life" is mentally removed from the text, what concrete facts remain to support sufficient suspicion or a conviction?
The last question is especially important. If the basis of the accusation disappears when the sentence is removed, that sentence is not explaining the evidence; it may be standing where the evidence should be.
Conclusion
The purpose of criminal proceedings is not to check whether people's lives look ordinary to the prosecutor or the judge. Its purpose is to determine whether the alleged offence has been shown by concrete, lawful and verifiable evidence.
A person's life may be unusual. His decisions may seem strange to others. His friends may be disliked. His telephone directory may be crowded, his explanation scattered, his memory weak. None of these removes the obligation to prove the statutory elements of the offence.
The sentence "contrary to the ordinary course of life" may find its place as an assessment explaining concrete evidence. But it cannot create evidence that does not exist. It cannot carry another person's offence over to the defendant. It cannot turn the right of defence into a sign of guilt. It cannot reverse the burden of proof.
For this reason, wherever "contrary to the ordinary course of life" is written, the question to be asked must be:
According to which concrete evidence, not according to which conception of life?
If this question cannot be answered, what is extraordinary is not the defendant's conduct but, in the example described, the repetition of the same sentence 51 times being put in the place of evidence and proof.
Because 51 repetitions are not 51 pieces of evidence. The same sentence can be written 51 times; but an unanswered question of proof is not answered by repetition.
Frequently Asked Questions
Is the phrase “contrary to the ordinary course of life” evidence on its own?
No. It is an assessment that can be used in interpreting the existing evidence. Its legal value depends on showing which concrete facts it rests on and its connection with the conclusion. It cannot by itself complete missing proof on the elements of the offence.
Can an HTS record be used to prove membership of an organisation?
HTS data obtained lawfully can be assessed as evidence. However, the existence of the record is not the same as the content and purpose of the call. The manner of calling, timing, persons, technical analysis and other facts must be discussed within the specific case. Categorical statements such as "HTS is always sufficient" and "HTS can never be sufficient" are not accurate. [2]
Must the defendant prove that each of his conversations was innocent?
No. The defence may submit evidence and request investigation, but it is under no obligation to prove innocence. The basis of the accusation cannot be reduced to the person's being unable to account for every past act. [1], [3]
Does the use of this phrase make it mandatory to return the indictment or to acquit?
No. The outcome depends on the contents of the file and the stage of the proceedings. Before the indictment is accepted, the conditions in CMK Articles 170 and 174 are assessed. At the end of the trial, if it is not established that the offence was committed, CMK Article 223/2-e applies. The presence of a single formula does not create an automatic outcome. [3], [9]
How is a concrete objection made to this reasoning in an indictment?
The objection should point out the gap the formula covers rather than the formula itself: Which act has not been linked to which evidence? Which explanation in the person's favour was not investigated? Why does the conclusion drawn from the record go beyond what the record shows? Which element of the offence is being completed by assumption? In this way the criticism becomes a verifiable legal argument.
Sources
Short quotations from jurists in foreign languages have been rendered for this text. The quoted words and the assessments the author draws from them have been kept separate from one another. The Woolmington and Berger decisions have not been used with the claim that they are directly binding precedents in Turkish law.
1 — Constitution of the Republic of Türkiye, Art. 38; Turkish Criminal Code, Art. 20. Constitution — TBMM; TCK — Ministry of Justice.
2 — AYM Plenary Assembly, Murat Albayrak, Application No: 2020/16168, 8.3.2023, in particular §§ 121–147. Decision.
3 — Code of Criminal Procedure, in particular Arts. 147/1-e, 160/2, 170/2, 170/4–5, 174, 217 and 230. Law — Ministry of Justice.
4 — Law No. 7331, Art. 19; date of adoption 8.7.2021. Provision added to CMK Art. 170/4. Text of the law — TBMM.
5 — AYM, Eşref Bingöl, Application No: 2021/10332, 18.7.2024, §§ 19–24. Decision.
6 — Paulus, Digest 22.3.2, Ad Edictum, Book LXIX: “Ei incumbit probatio qui dicit, non qui negat.” Source text — Trans-Lex.
7 — Woolmington v Director of Public Prosecutions, [1935] UKHL 1, [1935] AC 462, 23.5.1935, Lord Sankey, pp. 481–482. Decision scan; for the quotation see also Lord Neuberger, 6.10.2015, §§ 44–45 — UK Supreme Court.
8 — ECtHR, Telfner v. Austria, Application No: 33501/96, 20.3.2001, §§ 15–20. Official decision PDF — HUDOC.
9 — CMK Art. 223, in particular para. 2/e. Relevant provisions — Ministry of Family and Social Services.
10 — William Blackstone, Commentaries on the Laws of England, Book IV, Chapter XXVII, p. 352 in the online text examined. Source text — Yale Avalon Project.
11 — Official case-law record reproducing CMK Arts. 160/2 and 170/2. Ministry of Justice Case-Law Information Bank.
12 — Berger v United States, 295 U.S. 78 (1935), 15.4.1935, Justice George Sutherland, p. 88. Official decision — Library of Congress.
13 — Cesare Beccaria, Dei delitti e delle pene, 1764, Chapter XVI, Della tortura. Italian source text.
14 — ECtHR Grand Chamber, Yasak v. Türkiye, Application No: 17389/20, 5.5.2026, in particular §§ 200–213. Original English decision — HUDOC. The decision used is the 2026 Grand Chamber judgment, not the Chamber judgment of 27.8.2024.
15 — Official case-law record reproducing the reasoning and evidence assessment provided for in CMK Art. 230. Ministry of Justice Case-Law Information Bank.