In criminal proceedings, the requirement that evidence be obtained by lawful means is one of the most fundamental guarantees of the right to a fair trial and of the rule of law. The 10th Criminal Chamber of the Court of Cassation (Yargıtay) has handed down a decision that is set to shift the balance in criminal cases regarding the examination of digital evidence – in particular smartphones and WhatsApp correspondence.
Decision E. 2023/15758, K. 2024/18787 of the 10th Criminal Chamber of the Court of Cassation clearly established that digital examinations carried out without a proper judicial decision (a judge’s order or a prosecutor’s order) cannot form the basis of a judgment, even where the defendant consented.
What Does the Decision Say?
An examination of the reasoning and content of the decision reveals the following vital consequences for criminal trial practice.
Statutory Procedure Is Mandatory in Digital Examinations
In order for a suspect’s or defendant’s mobile phone to be examined and for the messages and data on the phone to be recorded, there must be a judge’s decision under Article 134 of the Turkish Code of Criminal Procedure (CMK) or, in cases where delay would be prejudicial, a written order of the Public Prosecutor.
The Defendant’s Consent Does Not Cure the Unlawfulness
This is the most striking part of the decision. The fact that, during an examination carried out by law enforcement (police/gendarmerie), the defendant voluntarily gave the password to his phone and permitted the examination does not make the procedure lawful. A protective measure initiated or carried out unlawfully cannot be legitimised by consent.
Without a Written Order, the Report Is Invalid
A “Phone Preliminary Examination and Safekeeping Report” drawn up by law enforcement on its own initiative, without a judge’s decision or the prosecutor’s approval, and the WhatsApp message contents based on that report, have no legal value.
The Fruit of the Poisonous Tree Is Also Poisonous
WhatsApp correspondence obtained unlawfully in this way has the status of “unlawfully obtained evidence” in criminal proceedings. Under the Constitution and the CMK, unlawfully obtained evidence cannot form the basis of a judgment and must be entirely disregarded by the courts.
What Is the Outcome of the Decision?
The practical and legal consequences of this decision are as follows.
The Need for Acquittal
If, in a criminal case (for example on charges such as drug trafficking or organised criminal activity), the only or strongest evidence relied on to convict the defendant is these improperly examined WhatsApp messages, and there is no other conclusive and convincing evidence in the file, the court must acquit.
Change in Law Enforcement Practice
Law enforcement units must now abandon the practice of examining phones and recording the results without a court or prosecutor’s decision on the ground that “the suspect consented”. Otherwise, the files they have worked on will be overturned by the Court of Cassation.
Strengthening of Defence Rights
For criminal defence lawyers, the chronology of how digital evidence was obtained (comparing the date of the decision with the date of the examination report) has become far more important when reviewing case files. Objections raised against improper examinations, pursued together with a criminal defence lawyer, may directly change the course of the case in the defendant’s favour.
In summary, the Court of Cassation has placed the privacy of private life and the protection of personal data above the principle of “freedom of evidence” in criminal proceedings, sending a very firm message: “The essential thing is not to obtain evidence at any cost, but to obtain evidence lawfully.”
Frequently Asked Questions
What should I do if my phone is seized?
According to the principle set out in the decision, it is important to find out on what legal basis (a judge’s decision or a written order of the prosecutor) the officers carrying out the seizure of your phone are acting. If there is no such decision or written order, any subsequent examination and the data obtained may be regarded as unlawfully obtained evidence in light of this Court of Cassation decision; in that case it is advisable to consult a lawyer without delay.
If I consent and allow my phone to be examined, does that make the examination lawful?
No. According to the decision of the 10th Criminal Chamber of the Court of Cassation, a protective measure initiated or carried out unlawfully cannot be legitimised by the defendant’s consent. An examination carried out after giving the password to law enforcement is still considered unlawful if there is no proper judge’s decision or written order of the prosecutor.
Are WhatsApp messages obtained without a judge’s decision never taken into account by the court?
According to the decision, such digital data obtained without a proper judicial decision have the status of “unlawfully obtained evidence” and, under the Constitution and the CMK, cannot form the basis of a judgment; they must be disregarded by the courts.
In which types of criminal cases is this precedent particularly important?
The decision is particularly important in cases where digital evidence (phone messages, WhatsApp correspondence) plays a decisive role – for example on charges such as drug trafficking or organised criminal activity. In such cases, if the only or strongest evidence relied on for the defendant’s conviction is improperly examined messages and there is no other conclusive and convincing evidence in the file, an acquittal must be given, as stated in the decision.
What does “a case where delay would be prejudicial” mean, and can the prosecutor always issue a written order?
Under Article 134 CMK, the rule is a judge’s decision; the law permits action on the written order of the Public Prosecutor only in cases where delay would be prejudicial. The point emphasised by the decision is that, in both scenarios, there must be a written and proper legal basis; reports drawn up by law enforcement on its own initiative without any written order do not satisfy this requirement.
How can improperly obtained evidence be challenged in the defence?
As the decision emphasises, the chronology of how the digital evidence in the file was obtained – that is, comparing the date of the judge’s decision or the prosecutor’s written order with the date of the actual examination/report – is of great importance. Where such an inconsistency is identified, this evidence can be challenged before the court through a lawyer on grounds of unlawfulness; such objections can directly affect the course of the case in the defendant’s favour.
The information on this page is for general information purposes only and does not constitute legal advice specific to your particular case.
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