ON THE ADMISSIBILITY OF WHATSAPP CHATS AS EVIDENCE IN OUR JUDICAL SYSTEM

It is a ground for reversal that a judgment was rendered with deficient investigation in a manner restricting the right of defense, whereas it was necessary to record the WhatsApp messaging entries—which were incorporated into the deposition dated 15/01/2020 merely in ‘summary’ form—into a minutes in a manner allowing judicial review by specifying the dates and times of the conversations in the form of detailed dialogues and by including screenshots within the scope of Article 134 of the CMK; to insert the original or a certified copy allowing judicial review into the case file if such a minutes has been drawn up; to read the said documents to the defendant during the hearing and ask for their statements; and to determine the legal status of the defendant based on the outcome after evaluating all evidence together (Court of Cassation, 10th Criminal Chamber, Basis No: 2021/2849, Decision No: 2021/5922).

In the examination conducted by taking into account that, within the scope of Article 134 of the Law No. 5271, a judicial decision or a written order of the Republican Prosecutor to be submitted for judicial approval is required in order to examine a suspect’s mobile phone and to record the information seized from the phone; even if the suspect consents, their phone cannot be examined, and messages or similar information within the phone content cannot be recorded, and evidence obtained without complying with these rules cannot form the basis of a judgment;

That the ‘minutes of preliminary phone examination and preservation’ dated 02.03.2020, which was drawn up regarding the WhatsApp messages on the phone belonging to the defendant without lawfully obtaining a decision or a written order pursuant to Article 134 of the Law No. 5271, does not constitute lawful evidence and cannot form the basis of a judgment even if the defendant consented to the examination of their phone; and that the statements of the signatories of the minutes—whose narratives were stated to be based upon for the judgment despite not being heard in the capacity of witnesses—would not affect the conclusion according to the content of the minutes, as it is understood that no drug transaction was witnessed even if they were heard in the capacity of witnesses;

It has been deemed unlawful to decide on the conviction of the defendant in writing instead of their acquittal, considering that there is no conclusive and convincing evidence beyond all reasonable doubt, other than the abstract statement of … during the investigation phase asserting that they obtained the drugs seized on them from the defendant at a time period prior to the physical surveillance and the seizure, against the defense of the defendant, in respect of whom there is no observation-based determination regarding a drug transaction between them and … and … who were processed for the offense of possessing narcotics for personal use, and upon whom no narcotic or psychotropic substance was seized (Court of Cassation, 10th Criminal Chamber, Basis No: 2023/15758, Decision No: 2024/18787).

In the face of the allegations that the complainant contacted the suspect upon seeing a vehicle for sale advertisement on the social media platform named Facebook, that a prepayment of 9,000.00 TL was made through the bank for the vehicle in question, but the vehicle was not delivered nor was the paid amount refunded, and the suspect could not be reached; furthermore, that the same advertisement was republished, and the identity card and registration certificate whose photographs were sent via WhatsApp were counterfeit, with the T.C. Identity Number on them being added subsequently, and that the suspect committed the imputed offenses by obtaining an unfair advantage; Whereas it was necessary to determine the suspect’s explicit identity and address details and obtain their statement, to request the bank account statements, to examine the bank receipts and WhatsApp chats, to investigate the phone number contacted and the details regarding the advertisement, to determine whether the identity card and registration certificate whose photographs were sent via WhatsApp were counterfeit, and to evaluate and appreciate according to the outcome whether the elements of the offense of fraud exist in the concrete case; Rather than deciding on the extension of the investigation upon the objection made against the decision of non-prosecution (nolle prosequi) rendered as a result of a deficient investigation and based on the erroneous reasoning that ‘…the relationship between the parties is in the nature of a legal dispute…’; deciding on the rejection of the objection based on the erroneous reasoning inconsistent with the scope of the file stating that ‘…according to the evidence gathered, statements obtained, and the entire scope of the file in the investigation conducted in accordance with the method; no evidence establishing sufficient suspicion to require the initiation of a public prosecution could be obtained in the incident subject to the investigation…’ is contrary to the Law, and the request for reversal for the sake of law has been found justified (Court of Cassation, 11th Criminal Chamber, Basis No: 2023/6480, Decision No: 2024/10416).