An assessment of the procedural requirements for identification under Additional Article 6 of the Police Duties and Powers Law (PVSK), and the evidentiary value of unlawful identification

Abstract: Identification is a method of obtaining subjective evidence, carried out during the investigation phase on the instruction of the public prosecutor for the purpose of establishing the perpetrator’s identity. The legal basis for this procedure is not the Code of Criminal Procedure (CMK) but Additional Article 6 of Law No. 2559 on the Duties and Powers of the Police (PVSK). This article examines the procedural requirements for identification, its forms of application, debates concerning the position of defense counsel, and the exclusionary consequence that an unlawfully conducted identification produces under Article 38/6 of the Constitution and Article 217/2 of the CMK, in light of the case law of the Grand Criminal Chamber of the Court of Cassation.

I. Introduction

In criminal procedure, the aim of ascertaining the material truth is limited by the requirement that evidence be obtained through lawful methods. Identification, resorted to in offense types where the perpetrator’s identity is unclear and where the statement of the victim or witness plays a decisive role, is one of the procedural institutions that most concretely reveals this balance. While identification serves the realization of a fair trial by determining the perpetrator, it is also a procedure carrying a high potential for error, given the risk of misidentification, which may lead to the restriction of an innocent person’s liberty. This dual structure has led the legislator to regulate the procedure for identification in detail.

Below, the legal nature of identification, its procedural requirements, forms of application, and debates concerning the position of defense counsel are examined; the evidentiary value of identification conducted in violation of procedure, and its effect on the trial, are then assessed in light of the case law of the Court of Cassation.

II. Legal Nature and Statutory Basis of Identification

Identification is an investigative procedure carried out by the police, on the instruction of the public prosecutor, where it is deemed necessary to determine whether the perpetrator at the scene of the offense is the same person as the suspect taken into custody. Notably, the identification procedure is not separately regulated in the Code of Criminal Procedure No. 5271; the detailed procedural rules governing the institution are instead found in Additional Article 6 of the Police Duties and Powers Law No. 2559 (PVSK). This regulatory gap has long been the subject of criticism in legal doctrine; indeed, in a dissenting opinion to a decision of the Grand Criminal Chamber of the Court of Cassation, it was emphasized that the absence of separate regulation of the identification procedure in a code of procedure that attaches such importance to the right of defense constitutes a significant deficiency.

Identification is also characterized as a method of obtaining evidence. However, it is accepted that this evidence carries a subjective character dependent on the witness’s perception, their state of agitation at the time, and the duration and distance over which the perpetrator was observed; for this reason, the legislator is understood to have prescribed detailed procedural rules in order to enhance its reliability.

III. Forms of Application of Identification

In legal doctrine, the identification procedure is classified according to various criteria:

Lineup identification: Carried out by lining up several persons, including the suspect, and asking the witness which one is the perpetrator.
Single-person identification: Only the suspect is shown to the identifying person; as no comparison is possible, this is the method most prone to error.
Open identification: The identifying person and the person being identified see one another during the procedure.
Concealed identification: The procedure is carried out without the two parties seeing each other, through a device such as a one-way mirror.
Photographic identification: A form of identification carried out using photographs, without the suspect being physically present.

In Turkish legal practice, lineup, concealed, and photographic identification are the forms principally adopted; it is established as a principle that the identifying person must not be seen by the person being identified, and that the procedure be conducted with the witness’s awareness.

IV. Statutory Requirements Concerning the Procedure for Identification

Under Additional Article 6 of the PVSK, the validity of the identification procedure depends on the cumulative fulfillment of the following requirements:

Necessity and prosecutorial instruction: The procedure may only be carried out where necessary and on the instruction of the public prosecutor.
Recording of the prior statement: Before the identification begins, the description (physical characteristics) given by the identifying person of the perpetrator must be separately recorded in a minute.
Requirement of similarity: The persons subjected to identification must be of the same sex and must resemble one another in age, height, weight, and clothing. Where necessary, the suspect’s appearance may be altered for identification purposes, and each participant is assigned a number.
Mutual non-visibility: The identifying person and the person being identified must not see one another.
Obligation of repetition and warning: The procedure must be repeated at least twice; the identifying person must be reminded that the suspect may not be present among those in the lineup at all.
Image recording: A photograph of those subjected to identification must be taken together, or their images recorded, and added to the investigation file.
Restriction specific to photographic identification: Identification may not be carried out using a single photograph or different photographs of the same person; the photographs compared must be of the same size and quality.
Obligation to keep a minute: The entire procedure must be recorded in detail in a minute.
Persons who cannot be compelled: Persons entitled to decline to testify under Article 45 of the CMK (such as close relatives of the suspect) cannot be compelled to take part in an identification; such persons may only do so voluntarily.

V. The Position of Defense Counsel in the Identification Procedure

Additional Article 6 of the PVSK contains no express provision regarding the position of defense counsel during identification. This gap has given rise to debate in practice. Under Article 149/1 of the CMK, a suspect or accused person may benefit from the assistance of defense counsel at every stage of the investigation and prosecution; Article 149/3 of the CMK further provides that the lawyer’s right to consult with, and provide legal assistance to, the suspect or accused during this process may not be obstructed. In light of these general principles, it is argued in legal doctrine that defense counsel’s participation in the identification procedure cannot be prevented, and that the suspect must be reminded of the right to benefit from defense counsel.

In certain decisions, the Grand Criminal Chamber of the Court of Cassation has concluded that the presence of defense counsel during identification is not mandatory. However, in the dissenting opinion accompanying the majority decision dated 15 April 2008 (Case No. 2008/6-70, Decision No. 2008/84), it was emphasized that failing to ensure the presence of defense counsel during an identification procedure — which frequently constitutes the sole basis for a conviction — would amount to a significant deficiency:

“Considering that gaps in procedural law must be filled by analogy and interpretation in a manner that does not restrict fundamental rights and freedoms, this gap concerning identification must likewise be filled in accordance with the spirit of the Code of Criminal Procedure.”(Grand Criminal Chamber of the Court of Cassation, 15 April 2008, Case No. 2008/6-70, Decision No. 2008/84 — dissenting opinion)

This debate once again underscores, for practitioners, the importance of effective defense representation at the investigation stage: the timely and accurate recording of violations of the identification procedure forms the basis for any exclusionary-rule claims that may later arise.

VI. Cases of Improper (Unlawful) Identification

The violation of any of the procedural requirements listed above renders the identification unlawful. The most frequently encountered examples of procedural irregularity in practice are as follows:

Identification carried out using a single photograph or different photographs of the same person
A marked dissimilarity in appearance among those subjected to identification
The procedure being carried out without the instruction of the public prosecutor
Failure to take, or to record in a minute, the prior descriptive statement before identification
The identifying person and the person being identified seeing one another
The procedure being carried out without observing the statutory minimum number of repetitions
Failure to draw up a minute, or the minute not being kept in accordance with proper procedure

VII. Legal Consequences of Improper Identification

Although the Turkish system of criminal procedure adopts the principle of free evaluation of evidence (Article 217/1 of the CMK), this freedom is not absolute. Under Article 217/2 of the CMK, the offense charged may only be proven by evidence obtained in accordance with the law. Article 38/6 of the Constitution expressly provides that findings obtained unlawfully may not be accepted as evidence. These two provisions form the legal basis for the consequences arising from an improperly conducted identification.

1. Exclusionary Rule and Inadmissibility as Basis for Judgment

An identification obtained in violation of the procedural requirements constitutes prohibited evidence under Article 217/2 of the CMK and Article 38/6 of the Constitution, and cannot serve as the basis for a conviction. This outcome is a reflection, specific to the identification procedure, of the general principle of criminal procedure that unlawfully obtained evidence must be absolutely excluded from evaluation.

An instructive example on this subject is the decision of the Grand Criminal Chamber of the Court of Cassation dated 24 May 2016 (Case No. 2014/13-676, Decision No. 2016/262). In that decision, it was determined that the sole evidence of the defendant’s guilt was a witness statement together with the identification based on it, and that the identification had been carried out contrary to the rule in Additional Article 6 of the PVSK prohibiting identification by means of a single photograph or different photographs of the same person, having been conducted solely by showing a photograph of the defendant. In view of this procedural irregularity, the Chamber found that the file contained no other evidence, certain and convincing beyond all reasonable doubt, sufficient to convict the defendant, and concluded that an acquittal, rather than a conviction, should have been rendered.

This decision is significant in showing that improper identification is not merely an abstract procedural violation; where it constitutes the sole evidence in a given case, it can have a material effect leading directly to acquittal.

3. The Question of Whether Even a Properly Conducted Identification Is Sufficient on Its Own

Even when properly carried out, identification is, by its nature, regarded as subjective evidence dependent on the witness’s perception and memory; accordingly, in the practice of the Court of Cassation, it is not deemed sufficient on its own for a conviction and must be corroborated by other evidence. This approach demonstrates that identification must be approached with caution, both in its procedural and evaluative dimensions.

4. Practical Consequences for the Defense

A claim of improper identification may be raised by defense counsel for the suspect or accused at every stage of the investigation and prosecution. For an effective defense strategy in practice, it is recommended that the following matters be examined with care:

Whether the identification minute contains all elements required under Additional Article 6 of the PVSK (prior statement, similarity, number of repetitions, numbering, image recording)
Where photographic identification is involved, the number, quality, and mutual similarity of the photographs compared
Whether the public prosecutor’s instruction is present in the file
Whether defense counsel was informed of the procedure and given the opportunity to participate
Whether the file contains other corroborating evidence besides the identification

VIII. Distinction Between Identification and Confrontation

Another institution not to be confused with identification is confrontation, regulated under Article 52/2 of the CMK. While identification serves to establish the perpetrator’s identity, confrontation is the procedure of bringing the relevant parties face to face in order to resolve inconsistencies between the conflicting statements of witnesses or a suspect, and to determine which statement should be credited. Confrontation is, as a rule, carried out by the judge during the prosecution phase; it may exceptionally be carried out during the investigation phase by the public prosecutor and the police under the prosecutor’s command only in cases of urgency concerning the establishment of identity. As it is, in principle, carried out during the prosecution phase, there is no procedural obstacle to the presence of defense counsel during confrontation.

IX. Conclusion and Assessment

While identification performs an important function in criminal procedure in establishing the perpetrator’s identity, it is, owing to its subjective nature, one of the types of evidence carrying the highest risk of error. In order to reduce this risk, the legislator has prescribed detailed procedural rules in Additional Article 6 of the PVSK, and has established that a result obtained in violation of these rules will be treated as prohibited evidence under Article 38/6 of the Constitution and Article 217/2 of the CMK. The case law of the Grand Criminal Chamber of the Court of Cassation demonstrates that, where improper identification constitutes the sole evidence in a given case, it can directly result in acquittal.

Within this framework, it is of great importance — both for the prosecution and for the defense — that identification minutes be carefully examined with regard to all elements required under Additional Article 6 of the PVSK, so as to jointly achieve the aims of criminal procedure: reaching the material truth and safeguarding fundamental rights and freedoms.

Identification in Criminal Procedure: Procedure, Improper Identification, and Legal Consequences

I. Introduction