Daily And Illegal Evidence In Divorce Case
The General Assembly of the Court of Cassation, in the decision regarding the case in which one of the spouses submitted the diary of the other spouse to the court as evidence and claimed that this diary was obtained unlawfully, stated that the diary was in a position that could be easily obtained by the spouse in the common residence and that the spouses did not violate each other’s private lives, and ruled that this behaviour was not unlawful and accepted it as lawful. However, if the party presenting the evidence had obtained this diary with an unlawful act and presented it to the court; for example, if he/she had obtained the diary in question from the other party’s separate residence by violating the inviolability of the residence, then this evidence would be considered as unlawful evidence according to the Court of Cassation.
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Unlawful evidence in criminal proceedings is mostly discussed in terms of evidence obtained through torture. In civil proceedings, for example, one of the spouses may make the other spouse write a confession through threats. He/she may produce unlawful evidence.
So, how will the spouse prove his/her claim in the divorce case? For example, how should the spouse who thinks that his/her spouse committed adultery prove this claim? This is also an important problem. The party who is obliged to prove must act in accordance with the law and prove his/her claims in accordance with the law.
Again, in a case examined by the 2nd Civil Chamber of the Court of Cassation regarding unlawful evidence; the 2nd Civil Chamber of the Court of Cassation accepted the recordings as unlawful on the grounds that the behaviour of the husband, who installed a spy program on his wife’s phone and recorded her conversations with this program, violated the right to privacy and freedom of communication. The husband’s obtaining the conversations and voice recordings of his wife with a spy programme is a criminal act.
Now, the 2nd Civil Chamber also accepts such situations as unlawful evidence.
IS THE EVIDENCE OBTAINED BY CHANCE CONSIDERED LAWFUL?
The 2nd Civil Chamber of the Court of Cassation has partially accepted the evidence obtained by chance as lawful. For example, if the cameras installed for the safety of the children are known by the spouses and despite this, if one of the spouses has committed violence against the other, the other spouse can use this evidence.
Until the decision is finalised, the evidence submitted by the parties should be kept in the file, even if it is illegal, but the drawbacks of this should also be eliminated. For example, by being kept in the court safe, this evidence should be protected because it already contains records related to private life, even if it is unlawful.
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