Can A Voice Recording Be Used As Evidence?
Although the existence of a right is necessary and sufficient in relations between parties, it must be proven in order for the existing right to be accepted before the court. To prove means to succeed in convincing the judge of the existence of a fact. Proving the right is a fundamental element for the outcome to be obtained at the end of the court proceedings.
Proof and credibility are parallel concepts in our legal system, but there is a nuance between them. Proof ensures that a court is satisfied that a fact exists, while credibility establishes a possibility (judicial rejection, false testimony, fair trial, etc.).
The most important and fundamental concept in the law of evidence is “evidence.” From the perspective of legal procedure, evidence is a means of proof that serves to form an opinion in the judge’s mind as to whether the fact that constitutes the dispute, or more precisely, the fact that is alleged to constitute the dispute, has occurred or not. The subject of evidence is events, with some exceptions. Legal rules and universal principles of law cannot be the subject of proof.
What Can Be Used as Evidence?
Evidence is the means accepted by the legal system for proof. There are certain limitations on the evaluation of evidence. The authority of the judicial body in this regard is limited in some cases by the legislature. One of these limitations is that evidence must be obtained in accordance with the law. If the evidence used to prove the existence of a right is contrary to the law, the basic rule is that this evidence should not be used by the judicial authority. Although this is the main rule, judicial precedents and international rules have introduced certain exceptions to this situation.
Since the concept of evidence is very broad, this article will only address the role of evidence obtained through “audio recording/environmental listening” in the law of evidence, which has recently become a frequent topic in both criminal trials and divorce cases.
What is the Legality of Audio Recording?
The concepts known as wiretapping and audio recording are concepts that criminal and civil proceedings focus on. With recent technological developments, almost everyone now listens to their phone conversations using applications they have purchased and wants to use them as a means of proving their rights, placing devices in the environment to conduct a kind of wiretapping.
The recording of audio, the concept of obtaining private data without knowledge, is an extension of the right to privacy guaranteed by the Constitution. The right to privacy, unlike traditional rights (such as the right to life, the right to property, etc.), is a right that has developed in parallel with modernization and advances in technology. The right to privacy gives individuals the right to demand that everything related to them remain confidential, not be disclosed, recorded, displayed, or violated.
Under Article 8 of the European Convention on Human Rights, the state has both negative and positive obligations regarding the protection of privacy. In this context, the state’s negative obligation is to refrain from interfering with private life, while its positive obligation is to prevent individuals from engaging in behavior that would effectively prevent others from exercising these rights.
Within the framework of fundamental rights, as a rule, audio recordings taken without a person’s knowledge cannot be accepted and used as evidence in court and are also a crime. There are two main exceptions to this rule. The first is in divorce cases and the second is in criminal cases. (For more information on criminal cases, please read our article Is Secret Audio Recording a Crime?
Illegal Evidence in Divorce Cases
Divorce cases are a type of case that differs from the basic systematics of the law in terms of the evaluation of evidence and is based on many rules established by practice. In practice, many people are unable to file for divorce because they cannot use audio recordings that prove the reasons for the termination of the marriage, even though they have such recordings, and even if they do file, they suffer a loss of rights because they do not present this evidence.
However, the Court of Cassation has emphasized that when evaluating evidence, it must be assessed separately in terms of whether it was obtained unlawfully or produced unlawfully:
“The CD relied upon by the court was recorded without the consent of the defendant woman and was created solely for the purpose of being used as evidence in the divorce case. Therefore, it is not possible to base the ruling on this evidence, which was created unlawfully in this manner.” T.C. SUPREME COURT GENERAL ASSEMBLY OF CIVIL LAW E. 2011/2-703 K. 2012/70 T. 15.2.2012
As stated above, the unlawful acquisition of evidence is a separate matter from its unlawful creation. While evidence obtained unlawfully may be evaluated depending on the specific circumstances of the case, evidence created unlawfully cannot be accepted as evidence under any circumstances. It is also understood from the audio recordings, transcribed by an expert, that the plaintiff’s conversations were recorded by the other defendants at the direction of the defendant Berrin without his knowledge, and that the defendants who made the recordings attempted to guide the plaintiff in his conversation and direct him. Therefore, it is established within the scope of the file that this evidence was obtained unlawfully.” T.C. COURT OF CASSATION GENERAL ASSEMBLY OF CIVIL LAW E. 2013/4-1183 K. 2014/960 T. 26.11.2014
In addition, images taken on social media platforms (such as Facebook and Twitter) can also be presented as evidence in divorce cases. Based on the idea that there is no privacy between family members, spouses can also use this data in divorce proceedings.
In its 2007 decision, the Court of Cassation defined the boundaries of privacy between spouses as follows:
“If evidence is obtained by violating the rights granted to individuals by the Constitution, there is no doubt that it must be accepted as having been obtained unlawfully. If there are reasons for the legality of obtaining the evidence, then the illegality ceases to exist. Undoubtedly, according to the Constitution, everyone has the right to respect for their private and family life. The privacy of private and family life shall not be violated. However, it is also a legal obligation for spouses in a marriage to remain faithful to each other during the marriage. [2]The private life of one spouse in this area concerns the other spouse, who is their life partner in marriage and with whom they live together, at least as closely as it concerns themselves. Therefore, in marriage, the area of legal obligations relating to the marital union is not the private life area of each spouse, but the family life area. In this regard, it is the privacy and inviolability of family life as a whole, not the private lives of the spouses individually, that is important and takes precedence. In this respect, the area of legal obligations of marriage is not inviolable for the other spouse. Therefore, when a plaintiff-defendant who suspects their spouse’s fidelity places a voice recording device in the home, which is the shared space of both spouses, without their spouse’s knowledge, to record their spouse’s private conversations and thus identify behavior incompatible with the obligation of fidelity, this cannot be considered a violation of the privacy of private life, and it cannot be accepted that there is any illegality.
In line with this decision, it is seen that an audio recording obtained lawfully, i.e., not fabricated, can be used as evidence in divorce proceedings.
“Since divorce proceedings are already a matter concerning the private lives of individuals, if the husband submits photographs, notebooks, or letters belonging to his wife, which he obtained in the place where they lived together, as evidence to the court, these pieces of evidence will be considered as evidence in court since they were not obtained by unlawful means. The woman living in the same house could have known that her husband could obtain this evidence, and the husband’s discovery of a notebook hidden by the woman in a closet in the bedroom or under the bed cannot be considered a secret place for the woman, as this place is where the spouses lived together. No one can be considered to have obtained evidence found in a place in their home by unlawful means, and the private sphere of life can be proven with evidence relating to the private sphere of life.” The defendant’s diary was accepted as evidence. C.A. 2002/2-617 K. 2002/648 T. 9/25/2002
However, it is obvious that the audio recording, which is not included in the list of evidence and to which the opposing party did not consent, cannot be relied upon:
“The evidence gathered shows that the plaintiff physically abused his wife, insulted her, kicked her out, and failed to fulfill his marital duties. The cassette containing the audio recording allegedly belonging to the woman, which the plaintiff claims to have, is not included in the list of evidence; moreover, the defendant did not consent to it, and therefore, it is seen that this cassette cannot be accepted as evidence.” T.C. COURT OF CASSATION 2nd CIVIL CHAMBER E. 2011/20038 K. 2012/28733 T. 30.11.2012
In the following decision of the 2nd Civil Chamber of the Court of Cassation, even the conversations recorded by the husband using spyware on his wife’s cell phone were accepted as legally valid evidence, and the court’s decision was upheld as correct. The dissenting opinion of the member judge is noteworthy for the following reasons:
“In the divorce case being heard jointly between the parties, the CDs containing voice recordings belonging to the defendant-plaintiff (the woman), submitted as evidence to the court by the plaintiff-defendant (the husband), were obtained by violating the defendant-plaintiff’s ‘privacy of private life’ and are therefore unlawful.”
In the divorce case being heard jointly between the parties, it was argued that the CDs containing voice recordings belonging to the defendant-plaintiff (the woman), submitted as evidence to the court by the plaintiff-defendant (the husband), were obtained unlawfully by violating the “privacy of the defendant-plaintiff’s private life” and therefore cannot be used as evidence; the court and the majority accepted that evidence obtained in this manner could be evaluated.” T.C. COURT OF CASSATION 2nd CIVIL CHAMBER E. 2012/21108 K. 2013/21067 T. 17.9.2013
However, the 2nd Civil Chamber of the Court of Cassation adopted the following decision, changing its above opinion:
“Although the court accepted that the defendant-counterclaimant woman was more at fault and decided to accept both divorce cases, based on the trial and the evidence gathered; the audio recording submitted by the plaintiff-counterclaimant man with his petition is unlawful evidence and therefore cannot be used as a basis for the ruling, but according to other evidence in the file, the defendant -counter-plaintiff woman’s actions were of a trust-breaking nature, the plaintiff-counter-defendant man had committed multiple acts of violence against his wife, his brother had committed violence against the defendant-counter-plaintiff woman, and he had remained silent about his family’s intervention.” TURKISH COURT OF CASSATION 2nd CIVIL CHAMBER Case Number: 2015/26667 Decision Number: 2017/4686 Decision Date: 24.04.2017
“Although the audio recording submitted by the plaintiff-counterclaimant woman was taken into account in determining fault, it cannot be used as a basis for the ruling because it was obtained unlawfully.” CASSATION COURT 2nd CIVIL CHAMBER Case Number: 2016/34 Decision Number: 2017/6403 Decision Date: 29.05.2017
“From the trial and the evidence gathered, it is understood that the words ‘Doesn’t he know that Allah causes illness…’ attributed by the court as fault to the defendant husband of the plaintiff-defendant woman are included in the CD transcript of the audio recording made by the man. This evidence, which is unlawful in nature, cannot be taken into account in determining fault and cannot be attributed as fault to the woman.” COURT OF APPEALS 2nd CIVIL CHAMBER Case Number: 2015/21364 Decision Number: 2016/15003 Decision Date: 21.11.2016
“The acts of insulting her husband, his mother, and his brother-in-law, which the court attributed to the defendant woman, are recorded in the CD transcript of the audio recording made by the man. This evidence, which is unlawful in nature, cannot be taken into consideration.” COURT OF APPEALS 2nd CIVIL CHAMBER Case Number: 2015/19097 Decision Number: 2016/12155 Decision Date: 06.22.2016
Can the Content of Messages Be Determined in a Divorce Case?
One of the most frequently asked questions by attorneys representing the parties during divorce proceedings is whether the content of messages can be determined. Article 135 of the Criminal Procedure Code regulates the conditions under which the content of messages can be recorded. According to this article, in order for message content to be determined, there must first be strong suspicion that a crime has been committed in a criminal investigation or prosecution. The existence of strong suspicion alone is not sufficient. In addition, a decision by the competent authority is required. Only under these conditions is it possible to determine the content of messages.
In divorce cases, the Family Court cannot request the identification of message content. The Family Court can only request information from the relevant operator to learn the time, number, and date the message was sent. However, if the messages sent by the parties are still stored on their phones, the content of the messages can be retrieved from the existing phone.
Acceptance of Secretly Obtained Voice Recordings as Evidence in Criminal Proceedings
The second exception where a voice recording taken without the other party’s knowledge is considered as evidence exists in criminal law. This exceptional situation has also been established by the Supreme Court’s case law.
In its decision, the Criminal General Assembly of the Court of Cassation stated, “It is imperative to accept that it is lawful for a person to record conversations with the other party in sudden situations where there is no opportunity to obtain further evidence and no opportunity to apply to the competent authorities regarding a crime being committed against them. Otherwise, the evidence would be lost and could not be obtained again.”
Supreme Court practices have created exceptions to the concept of unlawful evidence in both criminal and civil proceedings, creating exceptional circumstances.