Unlawful Evidence And Liberty In Divorce Cases
Where do the rights of the spouses towards each other begin and end in divorce cases? For example, when one of the spouses goes out of the house at night and goes travelling, is there an intervention such as the other spouse not letting him/her in the house? Can one spouse interfere with the other spouse’s private life or freedom of movement?
The 2nd Civil Chamber of the Court of Cassation stated that the spouses do not have individual rights against each other in divorce cases, and that the main priority is the family order and the rights in this direction.
Article 132-133 of the Turkish Penal Code criminalises recording the voice and image of another person. Does this regulation also apply to spouses? Are secret video and audio recordings illegal?
Everyone has the right to prove his/her claim, but individuals must realise these rights in accordance with the law as regulated in Article 38 of the Constitution.
It is not obligatory for the parties to claim that the evidence is unlawful. Whether the evidence is unlawful or not can be taken into consideration by the Judge ex officio (spontaneously). The judge shall not collect unlawful evidence and shall not take it as a basis for judgement.
ILLEGAL EVIDENCE IN DIVORCE CASES
In civil proceedings, unlawful evidence is mostly put forward in divorce cases. It is either submitted to the file by the parties or requested from the court.
Entry and exit records of the other party,
Whether a person stays in a hotel or not,
If he stayed at a hotel, the court is asked to provide information such as with whom he stayed and on which dates.
The court collects this evidence.
Looking at the general rate of divorce cases, the parties request the detection of communication in 80% of the cases. The 2nd Civil Chamber of the Court of Cassation, in one of its decisions, described the frequent, undisclosed conversations of one of the parties at inappropriate times as behaviour that undermines trust, and made a decision according to this evidence obtained through the detection of communication.
The Court of Cassation does not have a clear opinion on the detection of communication. Therefore, a clear violation of law cannot be mentioned. On the contrary, since the Court of Cassation has made decisions on the detection of communication that can be interpreted as lawful, the courts may decide on the detection of communication.
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