Ufuk Yeşil PhD*
The main purpose of criminal proceedings is to establish “material truth”. The material truth is the reality that is seen, heard, touched, in short, whose material existence is known and determined through the five senses. Actually, the ultimate goal is to reach “the absolute truth”. However, it is not always possible to find out the absolute truth for human beings who have only five senses and can use them in a limited way. Therefore, it is both a necessity and responsibility in the criminal procedure to discover at least “the material truth” and decide accordingly. There are numerous examples showing that even the resulting material truth can prove to be wrong over time. For example, in a study carried out in the United States, files that are related to death sentences executed in the last century were re-examined in the light of technology (with new and scientific evidence such as fingerprints, DNA, blood, sperm tests) that developed later, and it was realized that many innocent people had been wrongfully executed.
Criminal judges who are obliged to find out the material truth often decide only with “the apparent truth”. In trials carried out in Turkey at the present time, judgments are rendered with “the assumed truth” or “the claimed truth” without being bothered to investigate even the apparent truth. Absolute truth, material truth, apparent truth, formal truth, claimed truth, assumed truth…. It can be somehow attained each of these truths in criminal trials but any step remaining short of the material truth is far from achieving justice. What is worse is that statements such as “gained impression”, “formed opinion” and “assumed doubt” have come to the fore in Turkish courts in recent years, the word “truth” having been put aside.
RESPONSIBILITY TO FIND THE MATERIAL TRUTH
In civil procedure, a judge contents herself/himself with the formal truth and the responsibility to prove the formal truth rests with parties. But in criminal procedure, the suspect has no responsibility to prove. Neither a defendant who pleads guilty has to prove her/his guilt, nor does a defendant who claims to be innocent have to prove her/his innocence. Because the rule is innocence. What should be proved is guiltiness. Despite a victim, complainant, one bearing financial responsibility and intervening party work beside the prosecution authority in proving the guilt, the main responsibility in this matter belongs to the court. Because the person responsible for finding out the material truth is the judge. If the material truth cannot be revealed, it means the guilt was not be able to be proved. In other words, “conviction” is a response only to the material truth; any possibility other than that entails acquittal.
EVIDENCE AS A MEANS TO REACH THE MATERIAL TRUTH
Freedom of proof
Given that the purpose in the criminal procedure is to find out the material truth, the principle of “freedom of proof” has been adopted. So anything can be used as evidence. The only exception to this is evidence bans. As a requirement of the rule of law, materials that are not obtained in accordance with the law cannot become evidence. What is important for something being accepted as evidence is that the evidence must be particularly related to the offense. Things that are not relevant to the concrete incident, that does not reveal the elements of the offense are not evidence. It has also been emphasized in the judgments of the Plenary Criminal Chamber of the Court of Cassation (PCC) that any evidence must be representative and probative of the incident. For example, statements in a burglary file that the suspect broke into 10 other houses in the same neighborhood are not declaratory evidence of that burglary offense. Because those statements do not indicate the components of that burglary offense. It is possible that the suspect robbed the other 10 houses but did not rob this house. Those statements could only give an opinion to the judge on the suspect’s personality. What can acquire the nature of evidence is matters that concern the actual case, namely indicating that the suspect herself/himself robbed this house.
Evidence is categorized in various ways. It is classified as direct / indirect; hearsay / knowledge-based; statement / document / sign or declaratory / material evidence.
The declaratory evidence is the testimonies of the relevant persons. And the material evidence is evidence such as a rental contract, DNA test, blood and fingerprints. For instance, the testimony of a person who saw a murder is knowledge-based and direct declaratory evidence. However, the testimony of a person who talks about what she/he heard from another person seeing the murder is hearsay and indirect declaratory evidence.
Probatory force of evidence
What can be used as evidence in criminal proceedings is just as important as the probatory force of that evidence. Because probatory force of every evidence is not the same, and it cannot be relied on and trusted each evidence at the same level. For example, it is accepted that the probatory force of declaratory evidence is week. Because the declaratory evidence is human-oriented, subjective, relative, can be in the wrong and take sides. Yet the material evidence is tangible, visible, objective, scientific and universally accepted evidence and, for this reason, the most reliable one. The probatory force of any evidence is proportionate to how much it represents material truth. Thus, solely evidence representing the material reality is accepted as material evidence.
The acceptance of a testimony as “declaratory evidence” depends on the fact that it is obtained in accordance with procedures laid down in the laws. Statements taken without such procedure being observed, i.e. by unauthorized persons, can merely be accepted as indicative evidence but not declaratory evidence. What should be specifically emphasized here is that testimonies obtained through forbidden means that are stated in article 148 of the CCP cannot be used as evidence even though they are given with free will and consensually.
As emphasized in the judgments of the PCC, it is also looked for that declaratory evidence is representative of the incident and rational in addition that it is obtained in line with the law.
The declaratory evidence is also divided into three within itself as the testimony of suspect/defendant, witness testimony and testimony of other party. Evidence that is accepted as the most reliable one within the declaratory evidence is the testimony of an independent/public witness. The lest reliable one is the testimony of a suspect/defendant. A defendant is the person who knows best the material truth if she/he had committed the acts attributed to herself/himself. However, since the defendant has the right to tell lies and relieve herself/himself of a sentence, contrary to witnesses, it is not always possible to learn material truth from the defendant. It is possible that an innocent defendant conceals the material truth with various intentions such as interest, relieving another one, considering herself/himself guilty or benefiting from remorse.
The defendant’s statement may be in the form of confession or denial. Confession is a testimony a defendant gives against herself/himself or others, and is like a port of refugee for judges in criminal proceedings. Nevertheless, as explained above, whether she/he is guilty or innocent, the defendant may have a number of reasons to conceal the truth. And the denial is a right conferred on a defendant by the law, and the defendant has the right to deny her/his guilt and tell lies. A witness who gives false testimony is sentenced but no sentence is imposed on a defendant for telling a lie.
CORROBORATING DECLARATORY EVIDENCE
Although material evidence has probatory force by itself, declaratory evidence alone is not enough to prove since it is subjective, relative, deceptive and partial. That is why it must be definitely corroborated by accessory evidence. In respect of the declaratory evidence, in particular of the defendant’s confession, to be relied on in a judgment, the Court of Cassation indicates that it must be confirmed with supporting evidence in addition to being the result of free will, produced in the presence of a judge and not being withdrawn at the stage of trial. In the reasoning of the CCP article on questioning a defendant, it is stated in respect of the confession that “it has indirect probative force and it is not sufficient by itself to prove without integrating with other evidence”. That is to say, in order for the declaratory evidence to be relied on in a judgment, it must be corroborated by accessory evidence, especially by material evidence.
A defendant may give testimony against others as well as against herself/himself. Those defendants are called confessors, and those testimonies are called confessors’ testimonies. The confessors’ testimonies are also declaratory evidence. But it is in the lowest group ranked in terms of reliability within declaratory evidence.
Persons who are accepted as independent witnesses are those who aren’t in any way affected by the outcome of a trial, have no involvement in the incident, and have no connection with the defendant or victim. Nevertheless, the defendant and victim are the ones who will be personally affected by a judgment to be rendered and thus their testimonies are less relied on. A confessing defendant is even below that. Because she/he herself/himself is a defendant as well, and there is a possibility that she/could receive no penalty or lesser penalty as a result of testimonies she/he would give against others. She/he is even entitled to a reward, as is the case with some offenses. Confessors’ testimonies are therefore the most unreliable testimonies.
In particular, a testimony given by the defendant against herself/himself, which we call “confession”, and testimonies given against others by the defendant who wishes to benefit from effective remorse, which we call “confessor’s testimony”, must be definitely corroborated and confirmed by accessory evidence. More rigorous attention should be paid to the testimonies of defendants who wish to benefit from article 221 of the TPC, which regulates effective remorse in organized crime. Because, unlike provisions of remorse in other offenses, article 221 of the TPC has been interpreted and applied in the way that “the only condition to free yourself from punishment is to cause others to be punishment” and presented as “give us a name and be freed”. Given that this article has been displayed as if it were “the last exit before the highway”, it must be acted more cautiously while confessions and testimonies of confessors are relied on in a judgment in organized crimes. While even the testimony of a defendant against herself/himself must be verified, there is no need to explain that, in respect of testimonies given about others, it must be acted more rigorously.
In short, the criminal judge, obliged to reveal the material truth, must seek that “declaratory” evidence is definitely corroborated with accessory evidence, without being bound by the claims of intervening parties and confession of a defendant, and there are a number of well-established judgment of the Court of Cassation to that end.
The European Court of Human Rights said in one of its judgment on the matter as follows: “… In the instant case, the allegations against the applicant came from a single source, a pentito [confessor, T.N.] who had stated in 1992 that he had learned indirectly that the applicant was the treasurer of a mafia-type organisation. According to the authorities in question, in May 1992 those statements constituted sufficient evidence to justify keeping the applicant in detention, given the general credibility and trustworthiness of the pentito concerned. The Court is aware of the importance of cooperation of pentiti in the Italian authorities’ fight against the mafia. However, the use of statements by pentiti also give rise to difficult problems as, by their nature, such statements are open to manipulation and may be made in order to obtain the advantages Italian law affords to confessors, or for a personal feeling of revenge. That sometimes such statements could be ambiguous and the risk that a person might be put into a position of suspect and arrested on the basis of unverified allegations that are not necessarily disinterested cannot be underestimated. For these reasons, as the domestic courts recognise, statements of pentiti must be corroborated by other evidence. Furthermore, hearsay must be supported by objective evidence.” (Labita/Italy judgment of the ECHR, no. 26772/95, 06/4/2000, § 156 ff.).
Here, it is considered useful to touch upon some mistakes made on this matter by judges.
THE 1STMISTAKE: Accessory evidence looked for by the Court of Cassation is not another declaratory evidence. Namely, the declaratory evidence cannot be corroborated by another declaratory evidence. Such an understanding means the expression “two false witnesses make a person go to scaffold” comes true, and it turns into a regular practice in countries where the legal system is not established. The accessory evidence, highlighted by the Court of Cassation, is material evidence called “documentary or indicative” evidence. That is to say, the declaratory evidence must be definitely confirmed by the material evidence. For example, it is not enough that 5 person give testimonies about person A to the effect that she/he is a member of an organization. Because these testimonies are also declaratory evidence and it cannot be rendered a decision of conviction upon abstract testimonies. What could concretize these testimonies is material evidence.
The Plenary Criminal Chamber of the Court of Cassation found it unlawful that the defendant was sentenced on the basis of her/his statement in the police station which she/he subsequently retracted and said he/had given it as a result of coercion, and WHICH IS NOT CORROBORATED BY MATERIAL EVIDENCE, is in contradiction with the incident report and witnesses’ testimonies, and it stated that declaratory evidence should be definitely corroborated by material evidence (judgment of the Plenary Criminal Chamber of the Court of Cassation dated 17/12/1996 and numbered 10-275/288). However, in the current trials and especially in FETÖ/PDY cases, it has not been even considered as necessary that testimonies be corroborated by another testimony, let alone it being corroborated by the material evidence, and judgments of conviction have been rendered by abstract testimony of a single person being accepted as evidence.
THE 2NDMISTAKE: A number of things that do not indicate the elements of the offense attributed to the defendant have been accepted as evidence. As in the example given above, statements to the effect that the defendant also committed burglaries in the other 10 houses are not the proof in the case of burglary in the case. Nevertheless, usually judges have wrongly accepted this as a presumption or accessory evidence and convicted the defendant. Similar mistakes have also been made in the FETÖ/PDY files, and activities such as working in a community [cemaat]-related institution, having an account in the bank, sending your child to school, subscribing to the newspaper, joining a preaching group or giving scholarships to students have been considered to be primary or accessory evidence of membership of the terrorist organization. But as mentioned above, the acceptance of something as evidence depends directly on the fact that it indicates the concrete incident and the elements of the offense.
The most important element of the offense of membership of a terrorist organization is that the suspect knows and wishes the community’s ultimate goal (overthrowing the government) and the method it will employ, namely that it would achieve that goal by using arms, force and violence, and she/he joins the hierarchical structure for this purpose. To deposit money in a bank, which was officially operating, is not a proof establishing an element of this offense. It is not even indirect evidence, let alone direct one. Such a consideration not only leads us to a false conclusion like “if this defendant robbed the other 10 houses, he robbed this house as well” but also leads us to a false conclusion like “if she/he has an account in the bank, subscribed to the newspaper, her/his child went to school, thus she/he is a member of the terrorist organization”.
As specified in the judgments of the Plenary Criminal Chambers of the Court of Cassation, the evidence must be representative and probatory of the incident. The substantive and moral elements of the offense of being a member of a terrorist organization are known. Such legal activities not probative of these elements can not be a proof of the offense.
THE 3RDMISTAKE: It is a mistake about dividing the declaratory evidence. The declaratory evidence can be divided. However, as of the actual situation, if a confessor makes claims about 50 people and hit one of them, it is said that the confessor is telling the truth and the claims about the other 49 people are also considered to be true. That is to say, the testimony is assumed correct as a whole, without being divided.
In one of its judgments on the matter, the Plenary Criminal Chamber of the Court of Cassation stated that “a defendant’s testimony may be in the form of confession, namely against herself/himself, or against another one or both in the form of confession and a statement that others are also in. However, this testimony is not sufficient in itslef for a conviction. In this regard, it must be decided the acquittal from the attributed offenses of the accused S, against whom it could not obtained sufficient and persuasive evidence for her/his conviction, GIVEN THAT THERE IS A NECESSITY TO ACCEPT THAT THE DEFENDANT N’S STATEMENT WHICH ALSO ACCUSES THE OTHER DEFENDANT, BUT WAS NOT CORROBORATED BY SUFFICIENT AND VALID EVIDENCE IN RESPECT OF THAT DEFENDANT IS BINDING MERELY FOR HERSELF/HIMSELF” (Judgment of the Plenary Criminal Chamber of the Court of Cassation dated 26/05/1998, numbered 1998/1-110 docket and 1998/181 decision).
In this judgment, the PCC stated that it should be decided the conviction of defendant N since the testimony, she/he gave against herself/himself, was confirmed by other evidence, but the acquittal of the other defendant since the testimony, she/he gave against the latter, WAS NOT CONFIRMED BY OTHER EVIDENCE, and this judgment is indicative of the fact that the declaratory evidence could be divided. According to the judgment, it must be relied on the part of declaratory evidence that is confirmed by material evidence, and the non-confirmed part of it must not be taken into account.
If we summarize these in a concrete example, could the testimony of a person who becomes a confessor in FETÖ/PDY cases and gives the names of dozens of people, saying that “she/he was coming to preaching, I know she/he was from the community, we had gone abroad together to visit the community’s school, she/he had wanted, on behalf of the community, me to give an animal to sacrifice, she/he had asked me for scholarships and foodstuffs for poor students, we had stayed together in the house of the community …” alone be evidence for a conviction?
In the fist place, if this testimony is to be accepted as declaratory evidence, it must be corroborated by material evidence, namely the claim of going abroad by a plane ticket and passport registration, and the claim of staying in the community’s house by visuals such as video and pictures, the part of the testimony corroborated by the material evidence must be relied on, its abstract parts such as “she/he was coming to preaching”, which are not corroborated, must not be taken into account. Then, it should be considered whether the parts of this testimony (going abroad, granting scholarships and staying in the community’s house), which are corroborated by the material evidence, can be a proof of the offense of membership of the terrorist organization.
If it is accepted that the ultimate purpose of the so-called FETÖ/PDY structure is to overthrow the government through a coup, members of this organization are those who know and want that purpose. As the 16th Criminal Chamber of the Court of Cassation accepted (the judgment of the 16th Criminal Chamber of the Court of Cassation dated 24/4/2017, numbered 2015/3 E., 2017/3 K.) IF THIS PURPOSE WAS SECRET UNTIL 15 JULY 2016 AND BECAME APPARENT ON THAT DATE, ACTIVITIES SUCH AS GRANTING SCHOLARSHIPS AND PARTICIPATING IN TRIPS BEFORE THAT DATE CANNOT BE CONSIDERED AS EVIDENCE ESTABLISHING THAT THE SECRET PURPOSE OF THE COMMUNITY WAS KNOWN. THOSE ACTIVITIES MUST HAVE BEEN DONE WITHIN AN ORGANIZATION HAVING THE PURPOSE OF OVERTHROWING THE GOVERNMENT AND BY KNOWING THAT PURPOSE, NAMELY A PERSON GRANTING A SCHOLARSHIP AND PARTICIPATING IN A TRIP MUST HAVE ACTED KNOWINGLY AND WILLINGLY THAT THAT SCHOLARSHIP OR TRIP MAY HAVE BEEN USED ON BEHALF OF THE ORGANIZATION IN AN ACTIVITY TO OVERTHROW THE GOVERNMENT, AND IT MUST ALSO BE PROVED WITH THE MATERIAL EVIDENCE THAT THOSE ACTIVITIES WERE DONE TO OVERTHROW THE GOVERNMENT. However, while even confessors giving such testimonies are saying that they were unaware that this structure was a terrorist organization and that they knew all those as a community activity, it is against any sense, logic and law to assume that people against whom they gave testimonies did those within the context of a terrorist activity.
In short, to assume a person against whom there is a confessor’s testimony as a member of the terrorist organization DEPENDS ON THE FACT THAT IT IS CORROBORATED BY EVIDENCE INDICATING THAT THAT PERSON KNEW AND WANTED THE ORGANIZATION’S REAL PURPOSE, NAMELY TO OVERTHROW THE GOVERNMENT THROUGH A COUP. Other than this, activities such as opening an account in the bank, once legally operating, union membership, sending her/his child to school, using a communication program, newspaper subscription, granting scholarships cannot be accessory evidence that corroborates confessors’ testimonies. If these matters are to be accepted as evidence, it must be proved with concrete evidence beyond any doubt that the person knows the real purpose of the organization in these activities and this proof must not be based on assumptions. In the present trials, no search has been carried out into these matters, i.e. moral element of the offense (knowing and wanting the real purpose of the organization), activities once deemed legal have been accepted, in breach of the principle of non-retroactivity of crimes and punishments, as corroborative evidence for confessors’ statements, and heavy penalties have been imposed on persons on the basis of assumptions such as“if she/he sent her/his children to the schools, she/he knew of the coup” or “if she/he is a judge, she/he was in a position to be able to know the coup”, or “if she/he was a subscriber to the newspapers, she/he was also aware of the coup”.
SO, WHY ARE THE COURTS MAKING SUCH GRAVE MISTAKES?
In fact, the reason of the mistake made by the courts is very simple. Some of judges dealing with terror offenses are newcomers and inexperienced, and, in respect of senior and experienced ones, the only terror trials they know are the PKK files. But the PKK is a terrorist organization which have been carrying out armed attacks since eighties and clearly manifesting its ultimate purpose. Given that thousands of trials have been conducted for the last 30 years, it is henceforth searched in those cases not for whether she/he knows that the PKK’s ultimate purpose is to divide the country, it carries out armed actions and is a terrorist organization but only for whether she/he is a member of the PKK. Because, for years, it has been accepted that the suspect, like everyone, also joined the PKK, having the knowledge of all of this.
Since this is the only experience of the judges on the benches about terror trials, they have also considered the FETÖ/PDY files like the PKK files, and they have assumed that everyone who is a member of the community joined this structure in order to overthrow the government as they have assumed that everyone who is a member of the PKK was acting in order to divide the country, and they haven’t inquired into this matter at all. In fact, most judges do not even know that this must be inquired. Because there have left almost no judges who knows and remembers the trials in the early years of the PKK.
To finish the article with the following joke as a short summary of what we told above, a Bektashi keeps an eye on his neighbor’s goat. One day, he takes the goat unnoticed, slaughter and eat it. His neighbor notices the matter but remains silent, thinking that how can he prove if he goes to the cadi (Islamic judge), what if he proves, how he could get his right since Bektashi has nothing, it’s better we settle in afterlife. Time passes, both of them die, and the divine court is established. His neighbor complains about Bektashi, saying the latter slaughtered and ate his goat. Bektashi denies, and his neighbor says that he saw with his own eyes. Bektashi tells that a person could not be both a complainant and witness. The judging angel says that you’re right but it’s also written in the list given to me that the you slaughtered and ate the goat among your sins. Bektashi objects again and says you’re the judge of the court and you can’t act as a witness at the same time. The angel tells “you’re right, then we should look at the DNA and fingerprint on the goat and the knife, let’s bring that goat”. Meanwhile the door is opened and the goat with the blooded knife in its throat comes in. Stunned and panicked Bektashi screams: Whaaaat! The goat is here? Then, let’s hand over the goat to my neighbor, and close the case.
Yes, that goat, namely material evidence, must be definitely brought to the court. If the goat couldn’t be brought before the court, what Bektashi deserves is an acquittal. It should be kept in mind that material truth can only be reached with material evidence.
*Former prosecutor, former General Secretary of the Turkish Supreme Court of Jurisdictional Disputes