Evidence Qualification Of The Voice Recording Presented To The Court In Divorce Case
T.C. JUDICIARY
2ND CIVIL CHAMBER
E. 2007/17220 K. 2008/13614 T. 20.10.2008
CASE : At the end of the trial of the case between the parties, it was requested to examine the judgment given by the local court and dated above by conducting an appellate review, and on 1410.2008, the day appointed for the hearing, the appellant A.İ.D. and his attorney Av.G.T. came. The other party did not come despite the notification. After listening to the speech of the person who came, it was deemed appropriate to leave the matter until after the hearing to be examined and decided. Today, all the papers in the file were read and the necessity was discussed and considered:
DECISION : In the case; the plaintiff-defendant husband claimed that the CD related to the audio recordings, which was submitted to the court as evidence by the plaintiff-defendant husband. was obtained illegally by violating the “privacy of the private life” of the defendant, therefore it could not be used as evidence; and the court decided to reject the divorce case filed by the plaintiff-defendant husband on the grounds that “the sound recording presented by the plaintiff wife as evidence was created illegally by violating the privacy of the private life without the knowledge of the defendant, therefore it cannot be credited” and “no other evidence showing that the defendant acted contrary to the obligation of loyalty was brought”.
The evidence presented was obtained by a system prepared by the husband without the knowledge of the defendant in the residence where the spouses live together. As a result of the expert examination, it has been determined that the sound recordings on the (CD) are original and that there are no additions, subtractions, interruptions or copies. The defendant-plaintiff does not claim that the recorded conversations do not belong to him, and objects to this evidence by stating that it was obtained by violating the privacy of his private life.
There is no doubt that if an evidence is obtained by violating the rights of individuals recognized by the Constitution, it must be accepted that it has been obtained unlawfully. If there are reasons of lawfulness in the acquisition of 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. ( Article 20/1 of the Constitution) However, it is also a legal obligation for the spouses in a marriage union to remain faithful to each other during the continuation of the marriage. ( Article 185/3 of the Civil Code) 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, as closely as his/her own. Therefore, 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 area, the confidentiality and inviolability of the family life as a whole, not the private lives of the spouses individually, is of importance and priority. 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 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. On the contrary, there is a violation of the privacy of family life when the defendant accepts his friends for an illegitimate purpose in the common place of family unity. In this respect, it cannot be said that there is a violation of the law in obtaining the evidence in question. In that case, with the investigation and the evidence gathered; it has been realized that the defendant-plaintiff admitted his friends, including the opposite sex, to the joint residence for an illegitimate purpose and acted against the obligation of loyalty. In this case, there is an incompatibility between the parties, which is of such a degree as to shake the common life from its foundations and which does not allow the continuation of the union. The plaintiff is right to file a lawsuit in the face of the events that took place. Since it is no longer legally possible to force the spouses to live together under these circumstances, it was not correct to reject the request while the divorce lawsuit filed by the plaintiff-defendant husband should be accepted.
CONCLUSION : It was unanimously decided on 20.10.2008 to accept the appeals of the plaintiff-defendant husband and to VACATE the judgment for the reason explained above, not to examine the other aspects of the judgment according to the reason for the reversal, to take the 550,00YTL attorney fee for the hearing from N. and give it to A.İ., to return the pre-appeal fee to the depositor, to be open for decision correction within 15 days from the notification of this decision, on 20.10.2008.