CONTENTS OF THE DECISION
Criminal Division 2017/150 E., 2017/6231 K.
“Text of Justice”
Court: Criminal Court of First Instance
Crime: Violation of privacy
Verdict: Acquittal
The defendant appealed the decision of the Istanbul Anatolia 2nd Criminal Court of First Instance dated 26.01.2016 and numbered 2015/503-2016/ 33 dated January 26, 2016, was appealed by the defendant and, in accordance with Article 307, Paragraph 3 of the Criminal Procedure Code, as amended by Article 36 of Law No. 6763, the file was sent to our Chamber Presidency for review by the Criminal General Assembly of the Court of Cassation; it was deemed necessary to review it again:
In the reviewed case file, the defendant was charged with the crime of violating the privacy of private life as defined in Article 134/2 of the Turkish Penal Code (TCK)… As a result of the trial, considering the defendant’s defense, the participant’s statement, the documents in the file, and the entire scope of the file, it could not be determined exactly when the participant’s photo was uploaded to the defendant’s Facebook page, i.e., it could not be determined exactly whether the defendant uploaded it without the participant’s consent after they broke up. In its decision dated May 11, 2015, numbered 2015/35 K., the 12th Criminal Chamber of the Court of Cassation ruled that; “
… In this case, where the defendant and the participant had been friends for some time but later ended their friendship, the defendant posted photos of himself and the participant taken side by side on his Facebook page and did not remove the photos even after the participant asked him to do so following the end of their friendship.
According to the case file, the defendant and the participant had a relationship until September 2012, the exact date when the photos taken during their relationship were published on Facebook could not be determined, but the defendant posted them on his Facebook page during their relationship, and the participant did not object to this at that time. According to the participant’s statement, she wanted to break up with the defendant in September, The defendant, however, wanted to continue the relationship. In October 2012, the participant filed a criminal complaint against the defendant, alleging that he had threatened her, but later withdrew her complaint regarding the threat.
The defendant filed a complaint on 12/12/2012 alleging that the photos in question were still shared on the defendant’s Facebook page, but the indictment states that as of the date of the complaint, the photos were no longer on the defendant’sHe filed a complaint claiming that it was shared on Facebook, but according to the indictment, the photos were on the defendant’s Facebook page as of the date of the complaint, and in the defendant’s application to the prosecutor’s office, it was stated that the photos in question belonged to the defendant and that he had removed them at the end of December 2012.
Considering that the participant had filed a complaint for the crime of threat before the date of the complaint, it is understood that in the message sent by the defendant to the participant, he stated, “Whatever is in those photos, I have faced it, and neither you nor anyone else knows about it, and I will not account for it to anyone.” Considering the participant’s message in September that she wanted to break up with the defendant, it should be accepted that the photos in question were shared on the defendant’s page with the participant’s consent, but when the participant requested that the photos be removed, the participant’s consent could not be mentioned, and although the defendant was forced to remove them, the photos were not published on the Facebook website.
It is understood that the date of the complaint is not important, but rather whether the participant’s consent continued as of the date of the complaint and whether the photos were published on Facebook, and whether the defendant should be punished under Article 134/2-1 of the Turkish Penal Code for publishing the photo taken with the participant on Facebook.
It is not possible to determine the exact date on which the defendant uploaded the photograph taken with the participant to the Facebook website, i.e., after separating from the participant without their consent. The acquittal decision was based on the grounds that it did not comply with the formation and scope of the file.
Acceptance and appeal requirement;
In the short decision forming the basis of the judgment and in the judgment section of the reasoned decision, the applicable law and Article 232/6 of the Criminal Procedure Code were not indicated when the acquittal decision was made regarding the defendant. It is understood that the acquittal decision dated January 26, 2016, was overturned on the grounds that it “violated the provisions of Article…”.
According to the decision of the Criminal General Assembly of the Court of Cassation dated November 26, 2013, numbered 2013/50, 2013/525, and its subsequent applications, even if the decision to uphold the acquittal was made on its own initiative; proceeding in accordance with the decision to overturn the acquittal, discussing the issues that should have been addressed in the decision to overturn the acquittal, and relying on the research, investigation, and new evidence gathered after the overturning of the acquittal
A decision that was not included in the original ruling and was not reviewed by the relevant chamber, but was issued with new and different grounds, does not constitute a refusal to comply in essence, but rather a new ruling issued as a result of actually complying with the reversal. In such cases, if an appeal is filed against the decision, the review must be conducted by the relevant chamber of the Supreme Court of Appeals.
Following the cancellation decision of our office, the previous application was adopted as a result of the ruling issued by the local court;
“…As a result of the examination and evaluation conducted by our court upon the reversal decision; it was determined that it was not appropriate for the defendant to share photos that could be considered private between the parties on his Facebook account during the relationship, or for the complainant to expressly consent to this, that the failure to remove the photos from the page when requested by the defendant after the end of the relationship does not constitute the elements of a crime under Article 134/2 of the Turkish Penal Code, that the relevant article also refers to the unlawful disclosure of photos, but that in this case, there was no unlawful disclosure when the defendant began to disclose the photos, The purpose of the law is to prevent the unlawful disclosure of individuals’ private images or voices.
The images in question were lawful up to a certain point, and when disclosed in accordance with the law, the act does not constitute a crime. At this point, it is accepted that the consent of one of the parties to the image, namely the complainant, is required. As a result of the complainant presenting new and different grounds for acquittal, and considering that our court’s decision was appropriate, the local court’s final appeal was not a decision to resist, but a new ruling, and the decision to resist was accepted as an act of compliance. Upon examination, it was determined that the task of reviewing the appeal decision belonged to our Chamber Presidency: The participant’s
other appeals were rejected based on the course of the trial, the evidence gathered and presented at the trial, the conclusions of the prosecution, the court’s opinion and discretion, and the scope of the case file under review;
The defendant posted photos on his Facebook account showing him kissing the victim on the cheek, hugging her, and posing next to her in everyday clothes, with the victim’s knowledge.
Despite the victim’s request to remove the photos, they continued to be posted. In this case, given that the photographs showing the existence and nature of the relationship between the defendant and the victim
had previously been published on the social media site Facebook with the victim’s consent, it was determined that these photos could not be considered images related to the victim’s private life and violating the privacy of private life, and that the defendant’s continued publication of photos related to his personal data contrary to the victim’s consent constituted an offense under Article 136/1 of the Turkish Penal Code.
The defendant was acquitted in accordance with Article 223/2-a of the Criminal Procedure Code, regardless of the fact that the crime of unlawfully providing or obtaining the data mentioned in the letter would otherwise warrant a conviction, due to the insufficiency of the legal and written grounds.
Pursuant to Article 8 of Law No. 5320, which is currently in force, contrary to the request, a unanimous decision was made on September 13, 2017, in accordance with Article 321 of the Criminal Code No. 1412.