Any evidence obtained in violation of the law in accordance with Article 206 of the Code of Criminal Procedure is invalid. 22 of the Constitution again. According to the Article, confidentiality of communication is essential. Article 20 of the Constitution. The article, on the other hand, states that private life cannot be touched. However, if there is a certainty that the evidence will be lost in the attack directed at the person and it will not be possible to prove it again, the evidence that he will receive will be binding. In the event in question, even if a person has obtained evidence of a threat to him illegally during an argument with the attacker, it will be of evidentiary value for him to take an audio recording of the sudden incident, since you do not have the opportunity to contact the competent authorities at that moment and the evidence will be lost. You can review the sample Supreme Court Decision.
Criminal Department
Part Number: 2021/6097
Decision Number: 2021/10635
“text of jurisprudence”
DECISION
About the suspect for the crime of threat as a result of the investigation phase, Foca, dated 05.11.2018 issued by the prosecutor general’s Office of the Republic of 2018/2533 investigation,appeal against the decision on whether to prosecute 2018/1021 No. with the acceptance of the customer … …’s the skill of the surveyor of record located in the appendix to petition the DVD should be resolved with the investigation on the extension of BET Karşıyaka 1. Following the decision of the Magistrate dated 29/11/2018 and numbered 2018/2752, the aforementioned deficiency was completed by the Public Prosecutor’s Office of Foça and sent to the authority of the file for re-decision, at the end of the review, the Karsiyaka 1 about the rejection of the appeal. Upon the request of the Ministry of Justice to overturn the decision of the Magistrate dated 30/07/2019 and numbered 2018/2752 on various cases for the benefit of the law, the case file sent to our Department with the request letter of the Prosecutor General of the Supreme Court dated 22.01.2021 and numbered 2021/4384 was examined.
In the prompt article;
“Article 160 of Law No. 5271. in accordance with article 170/2 of the same Law, the Public prosecutor must immediately begin investigating the fact of the matter in order to decide whether there is room to open a public case as soon as he learns of a situation that gives the impression that a crime has been committed by a tip-off or otherwise. as a result of the evaluation that it will make in accordance with the article, when it reaches the conclusion that the collected evidence creates sufficient doubt about the fact that the crime was committed, it will file an indictment and file a public lawsuit, otherwise it will be 172 of the aforementioned Law. the decision on whether to prosecute pursuant to article to have done, however, Law No. 5271 of Investigation the public prosecutor does not fulfill the task that installs itself in the middle, in accordance with the law, an investigation in the absence of 173/3 of the said law. in the face of statements that the authority examining the objection may decide to accept the objection in order to ensure that the public prosecutor conducts an investigation, since the conditions in the article have not been formed;
According to the scope of the file; at the end of the investigation due to a concrete incident in which the suspect allegedly threatened the client “I’ll lay his body down” during the conversation, when the complainant and the suspect met to discuss the situation on the date of the incident, there was animosity between the parties, one of the witnesses present at the scene did not confirm the claims of the suspects in the complainant dec at the end of the investigation dec which the suspect allegedly said that he had taken over the farm where he had worked dec, abstract the claim, except that subsequent to the decision whether to prosecute for lack of evidence, the question for the decision of the appeal by complainant, upon the DVD attached to the petition of Appeal related to the event record should be made of the expert assessment specified with the investigation on the extension of BET Karşıyaka 1. Magistrates ‘ Court following the decision of the 2018/2752 different 29/11/2018 dated, dated 01/07/2019 expert report on the analysis of the DVD in question removed by the record about the decision to file the objection which was sent to be given to the tribunal, “…the complainant claims and abstract nature of evidence taken within a planning a violation of law in a public trial in addition to sound recording are not sufficient grounds for the opening of…” were dismissed on the grounds that the objection;
According to the expert report dated 01/07/2019 file located between the suspect during the conversation, “you ain’t here I” shaped the sentence Where are hesitant about the use against the suspect, the animosity between the complainant, the suspect and the evidence against him because of an unfair attack in order to prevent the possibility of loss to prevent the loss of audio and video recording, it is understood that the suspect is aware of existing footage from the records, as record specifies not made to the plaintiff to appeal to any word and in action, in this case, the aforementioned record cannot be considered as evidence obtained illegally, recorded secretly/unknowingly for the purpose of systematically and systematically producing evidence, the said record should be considered as evidence, in case there is sufficient evidence and suspicion to open a public case against the client for the crime committed, there was no hit in deciding to reject the appeal in writing instead of accepting it. it is said that “.
Legal Assessment:
Article 20 of the Constitution of the Republic of Turkey. and 22. in its articles, the principles of the privacy of people’s private lives and communication are guaranteed, 38/6. article 8 of the European Convention on Human Rights states that on the other hand, from international texts, the findings obtained in violation of the law cannot be accepted as evidence. the confidentiality of private life is protected in article 6. the right to a fair trial is also regulated in its article. Again, in the case law of the European Court of Human Rights, it has been recognized that unlawful evidence obtained in violation of the principle of privacy of private life will constitute a violation of the provisions of this Convention, (see. 6. in terms of article 12.7.1988 of the Shenk v. Switzerland decision, prg. 30-48; Dr. …, The Right to a Fair Trial, 3.B. 2008, p. 291; 8.in terms of article 26.4.1985 of the Malone v. Great Britain and 24.4.1990 of the France-Kruslin v. Huoin decision et al., Prof. Dr. …, The Human Rights Problem of Turkey 2004, p. 384 As for the regulation in our domestic law, it is 206/2-a and 217/2 of the Criminal Procedure Code No. 5271. in their articles, it is explained that the law and evidence contrary to the law cannot be based on the judgment.
On the other hand, CMUK No. 1412, which was previously in force and regulates criminal proceedings, was amended by Law No. 3842 of 18.11.1992 and Law No. 254/2. the article also states that ”the evidence obtained by the investigation and prosecution bodies in violation of the law cannot be based on the judgment”. In the decision of the Constitutional Court dated 22.6.2001 and numbered 1999/21 and CMB 2001/2 on the evidence obtained by private persons during the period of the said Law, the following determinations were made: ” CMUK’s 254/2. the evidence prohibited in the article is evidence obtained unlawfully. A deliberate violation of the law, on the other hand, is a violation of the accepted universal principles of law along with all the positive rules of law. This literally has a broader content than illegality. If there is a serious interference with constitutional rights, evidence obtained unlawfully by private individuals should also be covered by evidence bans. Because the main purpose of evidence bans is to protect basic human rights and freedoms. Defending an opinion to the contrary gives private individuals the opportunity to violate the fundamental rights and freedoms of individuals, which is unacceptable in a rule of law. It is not possible to take into account the evidence obtained by violating human rights by the courts due to the provision of CMUK 254/2.
The most basic rights of people whose private conversations have been recorded have been violated. Because Article 20 of the Constitution. in its article, the privacy of private life cannot be touched, 22. in its article, the rule that the confidentiality of communication is essential is included. If this path is opened once, it will lead to the existence of the Constitution, which is one of the basic rules of the rule of law and 2. the article of the law on prohibitions on evidence based on the principle of the ‘rule of law’ in its article will lose all its effect. The “honest transaction principle”, which is one of the principles in our procedural law, also does not allow the use of evidence obtained in this way. Article 6 of the European Convention on Human Rights the right to a fair /honest trial, regulated in the article, provides that people will be tried in accordance with the rules of the rule of law. Violation of this rule will violate the fairness of the transaction and the principle of honest transaction.”
In the face of the described legal regulations and judicial case law, only audio and video recordings of persons recorded in accordance with the law and its method have an evidentiary character. However, since it is illegal to secretly record a person’s conversation, it is not possible to evaluate it as evidence. However Dairemizce adopted and numbered and date and the date of ycgk 21.05.2013 2012/5 2013/248 13.12.2018 2017/5 mainly based on 2018/639 as stated in the decision, against oneself in relation to a crime that is being processed, and does not have the ability to obtain more evidence on how to contact the competent authorities in cases of no sudden to record his conversations with the adoption of the law of the state, the opposing party is mandatory. Otherwise, the evidence will be lost and will not be obtained again.