The most fundamental difficulty in crimes committed during face-to-face communication between people or through a communication tool arises in terms of proof. Victims of crimes who want to prove these non-public conversations, which are mostly between two people, want to make secret voice recordings and request protection from judicial authorities with these voice recordings. However, in terms of fundamental rights, as a rule, audio recordings taken without anyone’s knowledge cannot be used as evidence in court as they are unlawful evidence and making such recordings also constitutes a crime. There are two main exceptions to this
The first of these is seen in divorce cases and the second in criminal cases. The jurisprudence of the Court of Cassation states that “audio recordings obtained without the knowledge of the other party” can be used as evidence in divorce and criminal cases.
Acceptance of Secretly Obtained Voice Recordings as Evidence in Divorce Cases:
In the decision of the 2nd Civil Chamber of the Court of Cassation No. 2007/17220 E., 2008/13614 K. and dated 20.10.2008, it was stated that in marriage, the area of legal obligations regarding the union of marriage is not the private life of each of the spouses, but the area of family life, and that the confidentiality and inviolability of the family life as a whole, not the private lives of the spouses individually, is of importance and priority. The private life of one of the spouses in this area concerns the other spouse, who is his/her life partner with whom he/she came together in marriage and with whom he/she lives together, at least as much as he/she concerns himself/herself. In marriage, the area of legal obligations regarding the union of marriage is not the private life of each spouse, but the area of family life. In this respect, the area of legal obligations of marriage is not inviolable for the other spouse.
“For this reason, it cannot be said that there is a violation of the privacy of private life and it cannot be accepted that there is a violation of the law when the plaintiff-appellant, who doubts the fidelity of his spouse, records his spouse’s non-public conversations by placing a voice recorder device in the residence, which is the common place of both of them, without the knowledge of his spouse, and thus detects his behavior incompatible with the obligation of fidelity. Therefore, the lawsuit must be accepted…”
However, not all evidence can be used as proof in divorce cases. Obtaining an evidence illegally is one thing and creating an evidence illegally is another. Irregularly obtained evidence can be evaluated according to the characteristics of the concrete case, but evidence that is irregularly created through “fiction, manipulation” etc. cannot be accepted as evidence in any way.
In its decision dated 26.11.2014 and numbered 2013/4-1183 E. 2014/960 K:
“It is understood from the voice recordings transcribed by the expert that the plaintiff’s conversations were recorded by the other defendants with the direction of the defendant Berrin without her knowledge and that the recording defendants tried to talk to the plaintiff and direct her. Therefore, it is established by the scope of the file that this evidence was obtained illegally.” and the said evidence was not taken as a basis for the trial.
In this regard, the General Assembly of the Court of Cassation decided in the same direction in its decision dated 15.2.2012 and numbered 2011/2-703 E. 2012/70 K:
“The CD, which was taken as a basis for the judgment by the court, was recorded without the consent of the defendant woman and was created as a result of a fiction in order to be used as evidence in the divorce case. Therefore, it is not possible to take this evidence, which was illegally created in this way, as a basis for the judgment.”
In addition to this, images taken on social media tools (such as facebook, twitter) can also be presented as evidence in divorce cases. In a decision of the Court of Cassation in 2007, the Court of Cassation has drawn the boundaries of the confidential area between the spouses as follows: ”If the acquisition of an evidence is realized by violating the rights of individuals recognized by the Constitution, the evidence is deemed to have been obtained unlawfully. If there are legitimate reasons for obtaining the evidence, then the illegality disappears.” Undoubtedly, according to the Constitution, everyone has the right to demand respect for his/her private and family life, and the privacy of one’s private and family life shall be inviolable. However, it is also a legal obligation for the spouses to remain faithful to each other during the marriage.
Admission of Secretly Obtained Audio Recordings as Evidence in Criminal Proceedings
The second exception, in which a voice recording taken without the knowledge of the other party is considered as evidence, exists in criminal law. This exception is also established by the jurisprudence of the Court of Cassation.
The Court of Cassation has made a very separate evaluation of the recordings made to obtain evidence of a crime such as insult, threat, bribery, sexual assault, slander or blackmail that is being committed during communication. In these cases, the communication recordings made by the victim cannot be considered as an interference with private life. Because in these cases, the victim’s action is an act of defense that can be evaluated within the scope of self-defense due to the crime suffered.
According to the decision of the Criminal General Assembly of the Court of Cassation dated 2012/5-1270 E., 2013/248 K, 21.05.2013; the legality of the recording made in order to obtain evidence of the crime being committed against the person himself/herself is subject to two conditions:
There is no possibility of obtaining evidence again and
The existence of sudden circumstances in which there is no possibility of recourse to the competent authorities
This interpretation of the Court of Cassation, which is also supported by the doctrine, has ensured that people have the opportunity to protect the evidence due to the crime and unfair attack they are victims of. Otherwise, the evidence will be lost and cannot be obtained again.
Criminal General Assembly of the Court of Cassation 2010/5 MD-187 E., 2011/131 K. and dated 21.06.2011: “….It is not possible to evaluate the recordings obtained by the participant by recording the conversations he had with the defendants in the same environment and on the phone by recording them on his mobile phone within the scope of Article 135 of the Code of Criminal Procedure No. 5271, and in this context, it is not possible to be considered unlawful on the grounds that there is no judge’s decision, and it is necessary to accept that the evidence, which cannot be obtained again, was collected in order to be presented to the competent authorities regarding the crime allegedly committed against him by the defendants by asking for a bribe, and therefore it is in accordance with the law …”
III. Penalty for Unauthorized Sound Recording
If there is a violation of the confidentiality of communication as a result of unauthorized video or audio recording, the penalty to be imposed in the basic form of the crime will be increased by one fold according to Article 132 of the TPC.
In other words, in the crime of violation of the confidentiality of communication, the perpetrator will be sentenced to imprisonment from 1 year to 3 years, while the penalty to be imposed will increase by one if this violation occurs in the form of recording the contents in question.
In case of unlawful disclosure of these contents, imprisonment from 2 years to 5 years will be imposed.
In the case of unauthorized interception or recording of conversations between persons under Article 133 of the TPC, the perpetrator will be sentenced to imprisonment from 2 years to 5 years.
At the same time, when a person who participates in a non-public conversation records the voice of the speakers without consent, he/she may be sentenced to imprisonment from 6 months to 2 years and may also be sentenced to a judicial fine.
If the crime of violating the right to privacy occurs as a result of unauthorized video or audio recording, the prison sentence to be imposed in the basic form of the crime will be increased by one.
In other words, while the penalty is imprisonment from 1 year to 3 years, this will be increased by one. In case of unlawful disclosure of audio or video recordings that constitute a crime, the perpetrator will be sentenced to imprisonment from 2 years to 5 years.
