‘
Binding Of The Voice Recording Obtained By Unlawful Means
Pursuant to Article 206 of the Code of Criminal Procedure, any evidence obtained illegally is invalid. Again, according to Article 22 of the Constitution, confidentiality of communication is essential. Article 20 of the Constitution states that private life cannot be touched. However, if the person is certain that the evidence will be lost in the attack directed against him and that it will not be possible to prove it again, the evidence he will receive will be binding. In the case in question, even if the person obtained the evidence of the threat against him/her illegally while arguing with the attacker, the evidential value of taking the sound recording of the sudden event will arise, since there is no possibility to apply to the competent authorities at that time and the evidence will be lost. You can examine the Sample Court of Cassation Decision.
Criminal Chamber
Principal Number: 2021/6097
Decision Number: 2021/10635
“Case Law Text”
DECISION
As a result of the investigation phase against the suspect … … for the crime of threatening, following the decision of the Foça Chief Public Prosecutor’s Office dated 05.11.2018 and numbered 2018/2533 investigation, 2018/1021 on the decision of non-prosecution, Karşıyaka 1. Following the decision of the Criminal Judgeship of Peace dated 29/11/2018 and numbered 2018/2752 different business, upon the Foça Chief Public Prosecutor’s Office completing the aforementioned deficiency and sending the file to the authority to be decided again, at the end of the examination, upon the request of the Ministry of Justice to overturn the decision of the Karşıyaka 1st Criminal Judgeship of Peace dated 30/07/2019 and numbered 2018/2752 different business, the case file sent to our Chamber with the request letter of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 22.01.2021 and numbered 2021/4384 was examined.
In the request letter;
“Pursuant to Article 160 of the Law No. 5271, as soon as the public prosecutor learns of a situation that gives the impression that a crime has been committed through a denunciation or otherwise, he must immediately start investigating the truth of the matter in order to decide whether there is a place to file a public case, and as a result of the evaluation he will make in accordance with Article 170/2 of the same Law, if he reaches the opinion that the evidence collected creates sufficient doubt that the crime has been committed, he will file an indictment and file a public case, otherwise, in accordance with Article 172 of the aforementioned Law.
In the face of the explanations that the public prosecutor does not fulfil the investigation duty imposed on him by the Law No. 5271, in the absence of an investigation in accordance with the law, since the conditions in Article 173/3 of the said Law do not exist, the authority examining the objection may decide to accept the objection in order to ensure that the public prosecutor conducts an investigation;
According to the scope of the file; at the end of the investigation conducted due to the concrete incident in which it was alleged that the suspect and the complainant, who was working in the farm that the suspect stated that he had taken over, had a feud with the complainant regarding the dismissal, that the complainant and the suspect came together to discuss the situation on the date of the incident, and that the suspect threatened the complainant as “I will lay your corpse” during the conversation, it was stated that there was a feud between the parties,
that the witnesses who were present at the scene … …. did not confirm the allegations of the complainant suspects and that there was no evidence other than abstract allegations, upon the objection of the complainant to the said decision, upon the objection of the complainant to the said decision, following the decision of the Karşıyaka 1st Criminal Court of Peace dated 29/11/2018 and numbered 2018/2752 amended, regarding the expansion of the investigation on the grounds that an expert examination of the DVD recording, which is stated to be related to the incident attached to the objection petition, should be made.
Following the decision of the Criminal Court of Peace dated 29/11/2018 and numbered 2018/2752, the expert report dated 01/07/2019 regarding the analysis of the DVD recording in question was obtained and the court to which the file was resubmitted for a decision on the objection was decided to reject the objection on the grounds that “…there are no sufficient reasons for the opening of a public case other than the abstract allegations of the complainant and the sound recording, which is illegal evidence that he received within a plan…”;
According to the expert report dated 01/07/2019 included in the file, there is no doubt that the suspect used the sentence “I will pass you here” against the suspect during the conversation, the complainant made a sound and video recording in order to prevent an unfair attack against him due to the enmity between him and the suspect and to prevent the loss of evidence that may be lost, as it is understood that the suspect was aware of the recording made from the existing images,
In this case, the said recording cannot be accepted as an illegally obtained evidence that was secretly / unannouncedly recorded in order to produce evidence in a systematic and planned manner, and the said recording should be evaluated as evidence, it was not deemed inappropriate to decide to reject the objection in writing instead of accepting it, without considering that there is sufficient evidence and suspicion to open a public case for the crime attributed to the complainant. ” is said.
Legal Evaluation:
Articles 20 and 22 of the Constitution of the Republic of Turkey guarantee the principles of privacy of private life and confidentiality of communication, Article 38/6 states that the findings obtained illegally cannot be accepted as evidence, on the other hand, Article 8 of the European Convention on Human Rights protects the privacy of private life and Article 6 regulates the right to a fair trial.
Again, in the jurisprudence of the European Court of Human Rights, it has been accepted that unlawful evidence obtained in violation of the principle of privacy will constitute a violation of the provisions of the aforementioned Convention, (see Shenk v. Switzerland dated 12.7.1988 with regard to Article 6, prg. 30-48; Dr. …, The Right to a Fair Trial, 3rd B. 2008, p. 291; Malone v. England dated 26.4.1985 and France v. Kruslin/ Huoin dated 24.4.1990 with regard to Article 8, etc.), Prof. Dr. …, Turkey’s Human Rights Problem 2004, p. 384 As for the regulation in our domestic law, Articles 206/2-a and 217/2 of the Code of Criminal Procedure No. 5271 state that evidence contrary to the law and the law cannot be taken as a basis for judgement.
On the other hand, Article 254/2 of the Code of Criminal Procedure No. 1412, which was previously in force and which regulates criminal proceedings, amended by the Law dated 18.11.1992 and numbered 3842, states that “the evidence obtained by the investigation and prosecution bodies in violation of the law cannot be taken as a basis for judgement”.
In the decision of the Constitutional Court dated 22.6.2001 and numbered 1999/2 on the basis of 1999/2 and SPK 2001/2 on the evidence obtained by private persons during the period of the aforementioned Law, the following determinations were made “The evidence prohibited in Article 254/2 of the Code of Criminal Procedure is the evidence obtained in violation of the law. What is meant by illegality is the violation of all positive legal rules and the universal principles of law. In this sense, it has a broader content than illegality. If there is a serious interference with constitutional rights, evidence obtained unlawfully by private persons should also fall within the scope of evidence prohibitions.
Because the main purpose of evidence prohibitions is to protect fundamental human rights and freedoms. To defend a contrary view would allow private individuals to violate the fundamental rights and freedoms of individuals, which is unacceptable in a state of law. Evidence obtained by violating human rights cannot be taken into consideration by the courts due to the provision 254/2 of the Code of Criminal Procedure.
The most fundamental rights of the people whose private conversations were recorded were violated. Because Article 20 of the Constitution states that the privacy of private life cannot be touched and Article 22 states that the confidentiality of communication is essential. If this path is opened once, the article of law on the prohibition of evidence, which is one of the basic rules of the rule of law and derives its existence from the principle of ‘rule of law’ in Article 2 of the Constitution, will lose all its effect.
The “principle of fair dealing”, which is one of the principles in our procedural law, does not allow the use of evidence obtained in this way. The right to a fair/honest trial regulated in Article 6 of the European Convention on Human Rights stipulates that persons shall be tried within the framework of the rules of the rule of law. Violation of this rule will violate the fairness of the procedure and the principle of fair procedure.”
In the face of the explained legal regulations and judicial jurisprudence, only audio and video recordings of persons recorded in accordance with the law and method have the quality of evidence. On the other hand, it is not possible to evaluate the secret recording of a person’s conversation as evidence since it is unlawful. However, as stated in the decisions of the YCGK dated 21.05.2013 and numbered 2012/5 Esas, 2013/248 and dated 13.12.2018 and numbered 2017/5 Esas, 2018/639, which were adopted by our Chamber, it is obligatory to accept that the recording of conversations with the other party is in accordance with the law in sudden situations where there is no possibility to obtain evidence again and there is no possibility to apply to the competent authorities regarding a crime being committed against the person. Otherwise, the evidence will be lost and cannot be obtained again.
In the examined file, at the end of the investigation conducted due to the concrete incident in which it was claimed that the suspect threatened the complainant with “I will lay your corpse” during the conversation when the complainant and the suspect came together to discuss the situation on the date of the incident, there was enmity between the parties, one of the witnesses who was present at the scene … …. did not confirm the allegations of the complainant suspects and that there was no evidence other than abstract allegations,
and upon the objection of the complainant to this decision, upon the decision of Karşıyaka 1st Criminal Court of Peace dated 29/11/2018 and numbered 2018/2752 amended, an expert report dated 01/07/2019 was issued regarding the decoding of the DVD recording in question, and an expert report dated 01/07/2019 was issued by Karşıyaka 1st Criminal Court of Peace regarding the decoding of the DVD recording in question.
It is understood that upon the decision of the Criminal Court of Peace dated 29/11/2018 and numbered 2018/2752 amended, an expert report dated 01/07/2019 was prepared for the analysis of the DVD recording in question, and with the decision of Karşıyaka 1st Criminal Court of Peace dated 30.07.2019 and numbered 2018/2752 amended, it was decided to reject the objection on the grounds that “…there are no sufficient reasons for the opening of a public case other than the abstract allegations of the complainant and the audio recording, which is illegal evidence that he received within a plan…”.
Its clear that the complainant took a voice recording during the discussion between the suspect and the suspect, in a sudden situation where there is no possibility of obtaining evidence again and there is no possibility to apply to the competent authorities regarding a crime being committed against him. It is out of question that the voice recording was made within a planning. For the reasons explained, the decision to reject the objection instead of accepting it is against the law.
Conclusion and Decision:
For the reasons explained above;
Since the opinion in the notification issued by the Chief Public Prosecutor’s Office of the Court of Cassation in line with the request for reversal for the benefit of the law is deemed appropriate,
1-DECORATING the decision of Karşıyaka 1st Criminal Judgeship of Peace dated 30/07/2019 and numbered 2018/2752 amended work, pursuant to Article 309 of the Code of Criminal Procedure No. 5271,
2-Pursuant to paragraph 4-a of Article 309 of the CCP, it was unanimously decided on 24.03.2021 to complete the next procedures at the scene, and to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be submitted to the Supreme Ministry of Justice.
You can access our other article examples and petition examples by clicking here.