Evidence Of Video And Audio Tapes In Criminal Proceedings
One of the most controversial and confusing pieces of evidence in criminal proceedings is the videotapes containing video or audio recordings. Many times, these tapes, regardless of who, where and how they were obtained, are considered to be unlawful and their substitution is not allowed. However, it is not possible to accept audio and video recordings as unlawful evidence unconditionally.
First of all, it should be noted that these recordings are documentary evidence1 and often represent the event indirectly. However, as in the case of tapes recording the moment of the act, direct representation is possible, and even indirect representation can constitute valuable evidence.
When examining whether tapes containing video and audio recordings are legally admissible evidence, several aspects must be considered separately. These aspects include whether the recording is secret or not, whether it was obtained by public officials, whether the place is a public space or not, and whether the recorded activity is open to the public or not.
It would be useful to start the examination with the possibility that the person making the recording is a private person: If the person making the recording is a private person and the addressee is unaware of the recording, the important issue is whether the person making the recording was present at the recorded activity. If the private person records a moment and an activity in which he or she is present, it is not possible to accept that this evidence is unlawful, even if the addressee is unaware of the recording. For example, the private person speaks to the addressee face-to-face or by telephone and records this conversation without the addressee’s knowledge. Here, the lawfulness of the evidence should be examined from two different perspectives:
The first one is whether this act of recording constitutes a crime itself. If the recording is related to any activity in the private sphere of other persons or to the private2 (and confidential) activities of third parties, even in the public sphere, the recording itself
Because the right to privacy of private life and communication is protected not only against public officials, but against everyone. According to Article 12 of the Universal Declaration of Human Rights; “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence; nor shall anyone be subjected to unlawful interference with his honor or reputation. Everyone has the right to be protected by law against such interference and ill-treatment”. Likewise, Article 20 of the Constitution provides that “Everyone has the right to respect for his private and family life. The privacy of private and family life shall be inviolable”.
The provision in this article stating that “exceptions required by judicial investigation and prosecution are reserved” was repealed by Law No. 4709. Likewise, Article 21 of the Constitution protects the inviolability of the dwelling and Article 22 states that “Everyone has the freedom of communication. Confidentiality of communication is essential”.
As can be seen, the universal level of development that humanity has reached and the common sense that has emerged at this level have placed the private life and communication of the individual under absolute protection.
This protection can only be suspended in the presence of a strong suspicion of a crime, in order to restore social peace and tranquility disrupted by crime, if there is no other means of obtaining evidence and provided that it is decided by the judge. This is how common sense has struck a balance between the objective of “keeping the possibility of social development open” and the objective of “maximizing and protecting individual freedoms”. Therefore, anyone, no matter who he or she is, who intrudes into the private life, listens to or records the private communications of any person, commits a crime, unless it is based on a judge’s order issued in accordance with the law.
The recording made by this person cannot be evidence, nor can he/she declare the information he/she has obtained in this way as a witness, and any statement he/she makes in this regard is absolutely unlawful. It is important to emphasize that the illegality here is absolute.
On the other hand, if, as in our example, the registrant is involved in that activity, his/her registration includes his/her field of activity. In other words, the person who secretly records his own location on camera, or records his own phone call, has not secretly entered the private area of the third party. The third party’s activity is not secret to the person making the recording.
Of course, the disclosure of this recording to third parties would not be lawful. However, what we are examining is not whether the disclosure of this recording to the public would lead to a violation of rights, but whether it would be evidence in a criminal proceeding. The balance between the aim of “revealing the material truth” and the aim of “protecting the privacy of the private sphere” will be disturbed here in favor of finding the material truth. Otherwise, it would not be possible to rely on the testimony of the person making the recording in relation to an event in his/her field of activity.
However, the acceptance of such a result is contrary not only to law but also to reason.
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