Evidentiary Value of WhatsApp Messages in Criminal Proceedings

Today, most of the criminal files contain messaging records in some way. Threats, insults, fraud, drug dealing, sexual crimes, workplace disputes… In almost all of them, the parties take the correspondence on their phones to the court. However, the evidentiary value of WhatsApp messages depends on how the message is obtained rather than its content. A correspondence obtained illegally, no matter how striking its content, is removed from the file and cannot be used as a basis for judgment.

In this article, I explain the subject as it is in practice: which legal rules are valid, how the process works step by step, which documents need to be prepared, what the deadlines and approximate costs are, what mistakes are made most frequently. My goal is for you to know what to do in your own file when you finish the article.

Evidentiary nature of WhatsApp messages: basic rule

The Code of Criminal Procedure has adopted the principle of freedom of evidence. The crime charged according to Article 217 of the Code of Criminal Procedure No. 5271 can be proven with all kinds of evidence obtained in accordance with the law; The judge freely evaluates this evidence based on his/her conscientious opinion. So there is no limited list of evidence; A correspondence, screenshot or voice message alone may be sufficient to be used as a basis for judgment.

On the other hand, the limit is at the constitutional level. Article 38 of the Constitution of the Republic of Turkey No. 2709 is clear: findings obtained unlawfully cannot be accepted as evidence. This is not a principle to be weighed and balanced, but a rule of absolute exclusion. Article 22 of the Constitution also guarantees freedom of communication and confidentiality of communication; As a rule, a duly issued judge’s decision is required to monitor communications.

The law embodies this principle in three separate points:

• Rejection of evidence: According to Article 206 of the Code of Criminal Procedure, if the evidence required to be presented was obtained illegally, it is rejected.
• Justification requirement: Article 230 orders that the evidence in the file and obtained by illegal methods be shown separately and clearly in the reasoned decision.
• Exact reason for breaking: According to Article 289, the fact that the verdict is based on evidence obtained by illegal methods is one of the cases of absolute unlawfulness. In other words, even if it is not put forward separately in the appeal, it is taken into account ex officio.

Lawful access to the phone: CMK 134 chain

The way the investigation authority can access the correspondence on the suspect’s phone is Article 134 of the Code of Criminal Procedure. The article regulates the search, copying and seizure of computers, computer programs and files; Smartphones are also considered in this context. The conditions must coexist:

• Based on concrete evidence existence of strong grounds for suspicion,
• No other means of obtaining evidence(moderation and being a last resort),
• As a rule judge’s decision; In cases where delay is harmful, the decision of the public prosecutor shall be submitted to the judge for approval within twenty-four hours, and the judge will make a decision within twenty-four hours at the latest. If the period expires or the judge decides otherwise, the copies made and the deciphered texts will be destroyed immediately.
• During confiscation backup of all data in the system is made and a copy of the backup is given to the suspect or his representative and recorded in the report.

When any link in this chain is broken, the evidence is mutilated. The Supreme Court of Appeals is consistent on this issue: it overturned the conviction in a drug trafficking case, stating that the WhatsApp correspondence included in the report was obtained in violation of Article 134 of the Code of Criminal Procedure, and therefore it was not possible to use it as a basis for the verdict. This shows that a procedural error frequently made at the law enforcement stage can directly lead to acquittal or reversal.

Requirement to be discussed at the hearing

There is a second requirement that is often overlooked. Even if the correspondence is obtained lawfully, in accordance with Article 217, the judge can only base his decision on the evidence brought to the hearing and discussed before him. In practice, this requires that the correspondence be recorded in a record that allows for auditing, with detailed dialogues and screenshots, stating the meeting dates and times, and reading it to the defendant at the hearing and asking what he has to say. The Supreme Court overturned the decision, considering the reliance on WhatsApp recordings, which were included only in “summary” form in the testimony report, as a restriction on the right of defense. In other words, it is not enough to say “it is in the file”; It must have been duly entered into the file and discussed.

How does the process work step by step?

1. Entry of the correspondence into the file. Either one of the parties presents the recording on their phone, or the phone is seized during the arrest or search.
2. Judge’s decision. The public prosecutor’s office requests an investigation decision from the Criminal Judgeship of Peace within the scope of Article 134.
3. Image acquisition. The cyber crimes unit takes an exact copy (image) of the device, calculates the hash value, and gives a copy to the suspect or his defense attorney. The hash value is the technical assurance that the content has not been modified subsequently.
4. Expert examination. Correspondence is analyzed with date, time and addressee information and linked to the report.
5. Prosecution phase. Solution texts are read at the hearing, the defendant is asked, and the parties make statements during the evidence discussion.
6. Evaluation. In the reasoned decision, the court indicates which correspondence it took as basis for the decision, which it rejected and the reason.

What documents should be prepared?

If you’re presenting the correspondence, don’t just send a few screenshots:

• Original device should be kept ready for expert examination. A screenshot presented without the device has poor probative power because it can be easily modified.
• Complete correspondence are not selected parts. Cropped quotes raise suspicion of being taken out of context.
• Notary determination report. Fixing the content on the screen as of a specific date fixes the content and date. It does not make illegal evidence legal, but it weakens the claims of forgery.
• Line ownership information, to reveal who the addressee is.
• Petition containing the list of evidence, clearly including the request for IT expert review.
• If the correspondence is in a foreign language sworn translator translation.

Durations and approximate costs

There is no single duration, but there are critical thresholds. The judge’s approval of the prosecutor’s decision within the scope of Article 134 takes place within twenty-four hours. For crimes based on complaints, the complaint period is six months from the date the act and the perpetrator become known; This means a de facto deadline for the correspondence to be preserved and submitted. In terms of evidence presentation, it is necessary to submit the request before the discussion of evidence phase is closed in the first instance; It is much more difficult to accept new evidence at the appeal stage.

Just to give an idea in terms of costs: The Turkish Bar Association Minimum Fee Tariff of the Union of Turkish Bar Associations forms the basis for attorney fees, while in criminal defense the practice is above this and varies depending on the weight of the file. Notary determination report is relatively low cost. The private IT expert report is the most variable item that can increase significantly depending on the volume of data; Forensic expert fees are subject to a tariff and are generally lower. Sworn translation is calculated per page. Since there is a big difference depending on the city and the scope of the file, I recommend that you make a written fee agreement from the beginning.

Frequent errors that destroy the evidentiary quality of WhatsApp messages

• Hacking into someone else’s phone. Opening the phone of a spouse, partner or employee and extracting correspondence will not only cripple the evidence. Article 132 of the Turkish Penal Code No. 5237 punishes violation of the confidentiality of communications with imprisonment from one to three years; If the violation occurs by recording content, the penalty is increased by one. The person who files a complaint may become a suspect.
• Dissemination of content. Unlawfully disclosing the content of other people’s communications carries a prison sentence of two to five years. It is also a crime to publicly disclose the content of the communication made with the other party without the consent of the other party. The idea of ​​“my speech anyway” is misleading; Sharing on social media creates a separate file.
• Producing evidence for later use. The Supreme Court of Appeals ruled that the correspondences obtained for the purpose of being used as evidence in the judicial process could not be taken as basis for the verdict by considering them as prohibited evidence within the scope of Articles 206 and 217 of the Code of Criminal Procedure due to the way they were obtained, and stated that acquittal was required since there was no other sufficient evidence. Setting a conversation trap in a planned manner gives the opposite result than expected.
• Not investigating who wrote the message. Someone who scans the QR code via WhatsApp Web can send messages as they wish from the line. The Supreme Court overturned the decision, considering it insufficient justification to make a judgment without determining from which device, from which location and from which IP address the messages attributed to the defendant were sent. If your defense is “I did not write those messages”, you should clearly request this determination.
• Relying on screenshot only. Without the device and the hashed image, the other party claims forgery and is often wiretapped.
• Deleting messages. The person who deletes his own correspondence also destroys the context in his favor; Additionally, deleting behavior can be interpreted negatively.
• Taking action late. Device modification, overwritten backups and timed messages completely eliminate evidence. Conservation is an urgent task.

A concrete example

An employee, who thinks that he has been slandered at work, exports the correspondence from the WhatsApp Web session left open on his manager’s computer after work and submits it to the prosecutor’s office. Expected result: correspondence is removed from the file as evidence obtained illegally and an investigation may be initiated against the employee for violating the confidentiality of communications. The right way was to file a complaint with the legal documents in hand and ask the prosecutor’s office to make a request under Article 134 to obtain the correspondence. The evidence would be the same; the path would be valid.

Frequently asked questions

Can I use the WhatsApp conversation on my own phone as evidence?

As a rule, it is possible to preserve and present a correspondence to which you are a party; Recordings made, especially against a sudden and unexpected attack, to prove a fact that is likely to be lost, and when there is no possibility of obtaining other evidence, are accepted in practice. The problem is the deliberate creation of the conversation or the public dissemination of the content for the purpose of producing subsequent evidence. The border is thin; It is useful to get opinions before acting.

Is a WhatsApp screenshot considered valid evidence in a criminal court?

It can enter the file, but its proof power alone is limited; It is open to objection because it is changeable. Submitting the original device for expert examination significantly increases the value of hashed image acquisition and notary detection.

What should I do if the police examined my phone without a judge’s order?

This is a first-class defense. You must request the removal of the evidence from the file, citing violation of Article 134 of the Code of Criminal Procedure; If the verdict is based on this evidence, there will be grounds for reversal due to absolute unlawfulness. Put forward the objection in writing at the first procedural opportunity, do not leave it to appeal.

Can deleted WhatsApp messages be retrieved and used against me?

Technically it is possible in most cases; Data can be recovered through forensic analysis of the device, local backup or memory card. However, its availability depends on the judge’s decision and compliance with the procedure in Article 134.

Can a conviction be made based solely on WhatsApp correspondence?

It is possible if the evidence is lawful, complete, attributable to the perpetrator with certainty, and compatible with the rest of the file. In practice, courts look for supporting evidence: witness statements, expert report, HTS records, cell tower and location data. A correspondence that is isolated and refuted by counter-evidence is generally not considered sufficient in the face of the principle that the defendant gets the benefit of the doubt.

If my phone is confiscated, what should I do in the first 24 hours?

Request an attorney immediately, do not share your password without legal support, request that the backup process be recorded and request the backup copy that must be given to you by law. Keep all paperwork given to you; The discussion on the legality of the evidence will later be based on these minutes.

Will using the correspondence on my wife’s phone in the divorce case lead to criminal liability?

Yes, the possibility is serious. Accessing and recording someone else’s communication content without consent may constitute a crime under the Turkish Penal Code. Your expectations in a civil case and your risk of punishment should be evaluated separately; Be sure to consult before taking any steps.

Result

In criminal proceedings, the way evidence is obtained is as decisive as its content. A very powerful correspondence obtained illegally does not carry the file; A modest correspondence entered into the file by the judge’s decision, having its image taken and discussed at the hearing, can change the outcome. If you are in a dispute that may turn into a criminal trial, your priority is to preserve the evidence without losing it and without committing a crime in the process, and to obtain it in the way prescribed by law.

Disclaimer: The information in this article is general information about Turkish law and is not legal advice. The unique conditions of each file can completely change the result. You should consult a lawyer for your specific situation.

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