Audio Recording Can Be Used as Evidence

If the existence of a right is necessary and sufficient in the relationship between the parties, it must be proven in order for the existing right to be accepted before the court. Proof means convincing the judge of the existence of a case. Proving the right is a fundamental element of the outcome to be obtained in court.

Proof and certainty are parallel concepts in our legal system, but there are some nuances between them. Proof ensures that an existing case is definitively decided in court, while reasonableness allows for the emergence of a possibility (judicial denial, false testimony, fair trial, etc.).

The most important and fundamental concept in the law of evidence is ‘evidence’. From a legal procedural perspective, evidence is a means of proof that creates a dispute or, more precisely, helps a judge form an opinion on whether the alleged case has occurred. The subject of proof is events, with some exceptions. Legal rules and universal principles of law cannot be made the subject of proof.

What Can Be Used as Evidence?

Evidence is the means accepted by the legal system for proof. [1] There are a number of limitations on the evaluation of evidence. The jurisdiction of the court in this regard is limited in some cases by the legislature. One of these limitations is that the evidence must have been 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 court.

While this is the basic rule, case law and international rules have introduced a number of exceptions to this situation.

Since the concept of evidence is quite broad, this article will suffice to address the place of evidence obtained through ‘audio recording/environmental listening’ in the law of evidence, which has frequently been discussed in criminal trials and divorce cases in recent days.

What is the Legality of Audio Recording?

The concepts known as environmental surveillance and audio recording are concepts that are the focus of criminal and civil cases. With recent technological developments, almost everyone wants to listen to phone conversations with applications they purchase and use them as a means of proving the truth, placing a device in the environment and conducting a type of environmental surveillance.

The concept of recording audio and obtaining private data without notice is an extension of the right to privacy, which is guaranteed by the Constitution. The right to privacy, unlike traditional rights (right to life, right to property, etc.), is a right that has developed in parallel with modernization and technological advances. Th right to privacy gives the individual the right to demand that everything related to them remain confidential, not be expressed, recorded, displayed, or violated.

According to 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, while the state has a negative obligation not to interfere with private life, it also has a positive obligation to prevent private individuals from acting in a manner that would effectively prevent others from exercising these rights.

As a rule, when assessed within the framework of fundamental rights, audio recordings made without the knowledge of the person concerned may be considered evidence of a violation of the law and a crime. There are two main exceptions to this situation. The first is seen in divorce cases, and the second in criminal cases. (You can read our article titled “Is secretly making audio recordings a crime in criminal cases?”)

Illegal Evidence in Divorce Cases

Divorce cases are a type of case that differs from the basic legal system in terms of evidence evaluation and is based on many established rules in practice. In practice, many people cannot file for divorce on the grounds that these recordings cannot be used, and even if they do, they lose their rights because they do not present evidence, even if there are audio recordings proving the reasons for the termination of the marriage.

However, the Court of Cassation has emphasized that the unlawful acquisition and unlawful production of evidence must be assessed separately in the evaluation of evidence:

“The CD relied upon in the court decision was recorded without the consent of the defendant woman and was fabricated for use as evidence in the divorce case.

In this case, it is not possible to base a ruling on this evidence, which was obtained in this manner and unlawfully.” TURKISH SUPREME COURT OF JUSTICE GENERAL ASSEMBLY 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 based on the nature of the specific case, evidence created unlawfully cannot be accepted as evidence under any circumstances. Furthermore, it is understood from the audio recordings made by the expert witness that the plaintiff’s conversations were recorded by the other defendants without the knowledge of the defendant Berrin and that the defendants who recorded them attempted to talk to the plaintiff and influence him. Therefore, it is clear from the scope of the file that this evidence was obtained unlawfully. TC SUPREME COURT GENERAL ASSEMBLY E. 2013/4-1183 K. 2014/960 T. 26.11.2014

Furthermore, photographs taken on social media platforms (such as Facebook and Twitter) may also be submitted as evidence in divorce cases. Pursuant to the ruling that there is no privacy between family members, spouses may also use this data in divorce proceedings.

In its 2007 decision, the Court of Cassation defined the limits of the decision-making area 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.

Without a doubt, according to the Constitution, everyone has the right to demand respect for their private and family life. The privacy of private and family life shall not be violated. However, spouses are legally obligated to remain faithful to each other during the marriage. [2] The public life of one spouse is as closely related to the other spouse, who is their life partner whom they met through marriage and with whom they live, as it is to their own spouse.

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 area, not only the privacy and inviolability of the spouses’ individual private lives, but also the privacy and inviolability of family life as a whole are important and take precedence. In this context, the area of legal obligations of marriage is not inviolable for the other spouse. Therefore, if the plaintiff-defendant, who suspects their spouse’s fidelity, lives together in a home with shared living areas, it is possible to detect behavior incompatible with the obligation of fidelity by placing a voice recording device to record their spouse’s private conversations, thereby violating their privacy, and this cannot be considered unlawful.

According to this decision, it is understood that an audio recording obtained lawfully, i.e., not fabricated, may be used as evidence in divorce proceedings.

“In a divorce case concerning an individual’s private life, if the husband submits photographs, letters, notebooks, or other evidence of his wife’s whereabouts to the court, and these pieces of evidence have not been obtained through unlawful means, they will be considered as evidence in court.

if a woman living in the same house knows that her husband has access to this evidence, and he finds the notebook she hid in the closet or under the bed in the bedroom, this place cannot be considered a private place for the woman because it is a place where the spouses live together; she cannot be considered to have obtained evidence in her home unlawfully, it has been emphasized that the private sphere of life can be proven with evidence related to the private sphere of life,” the defendant’s diary was accepted as evidence. TURKISH SUPREME COURT GENERAL ASSEMBLY E. 2002/2-617 K. 2002/648 T. 25.9.2002

However, it is certainly not possible to rely on an audio recording that is not included in the list of evidence and was obtained without the consent of the other party on the following grounds:

“The evidence gathered shows that the plaintiff physically abused his wife, insulted her, forced her to leave the house, and failed to fulfill his union obligations. The tape containing the audio recording allegedly belonging to the woman was not included in the list of evidence, and since the defendant did not consent to it, it cannot be accepted as evidence.” TC 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 Supreme Court, even conversations recorded by the husband on his wife’s cell phone using spyware were accepted as evidence in accordance with the law, and the court’s decision was upheld as correct. It is noteworthy that the member judge voted against the decision for the following reasons:

“In a divorce case where no settlement was reached between the parties, a CD containing voice recordings belonging to the defendant-plaintiff (the woman) was submitted to the court as evidence by the plaintiff-defendant (the husband). It was argued that the defendant-plaintiff’s ”privacy” had been violated and that the recordings had been obtained unlawfully, and therefore it was argued that they could not be used as evidence; the court accepted that evidence obtained in this manner could be evaluated.” TC COURT OF CASSATION 2nd CIVIL CHAMBER E. 2012/21108 K. 2013/21067 T. 17.9.2013

However, the 2nd Civil Chamber of the Supreme Court of Appeals changed its opinion on the above matter and issued the following decision:

“Although the court accepted that the defendant-counterclaimant woman was more at fault and decided to accept both divorce cases, from the trial and the evidence gathered; from the other evidence in the file, it was determined that the actions of the defendant-counterclaimant woman constituted trust-breaking behavior, that the plaintiff-counter-defendant man committed multiple acts of violence against his wife, that the defendant-counter-plaintiff woman’s brother committed violence against her, and that the family remained silent about this and did not intervene.”

CASSATION COURT 2nd CIVIL CHAMBER Case No.: 2015/26667 Decision No.: 2017/4686 Decision Date: 04/24/2017

“Although the audio recording submitted to the court by the plaintiff-defendant woman was taken into account in determining fault, it cannot be used as a basis for the ruling because it was obtained unlawfully.” SUPREME COURT OF APPEALS 2nd CIVIL CHAMBER Case No: 2016/34 Decision No: 2017/6403 Decision Date: 29.05.2017

“From the trial and the evidence gathered, it is understood that the plaintiff-defendant had the woman removed as a disease for the defendant, who was alleged to be at fault by the court, ”Allah….“ The statement ”how do you know” regarding the CD containing the audio recording made by the man is included in the decision record. This evidence, which is unlawful, cannot be taken into account in determining fault, and the woman cannot be held at fault.” COURT OF APPEALS 2nd CIVIL CHAMBER Case No.: 2015/21364 Decision No.: 2016/15003 Decision Date: 21.11.2016

“The slander cases brought by the court against the defendant’s spouse, his spouse’s mother, and his brother-in-law are included in the CD settlement minutes related to the audio recording made by the man. This evidence, which is unlawful in nature, cannot be taken into consideration.” SUPREME COURT OF APPEALS 2nd CIVIL CHAMBER Case No: 2015/19097 Decision No: 2016/12155 Decision Date: 22.06.2016

Can the Content of Messages Be Determined in Divorce Proceedings?

“Whether the content of a message can be determined” is one of the questions most frequently asked by attorneys representing parties in divorce proceedings. Article 135 of the Criminal Procedure Code regulates the conditions under which message content may be recorded. According to this article, in order for the content of a message to be determined, there must first be strong suspicion that a crime has been committed during a criminal investigation or prosecution. The existence of strong suspicion alone is not sufficient. A decision by the competent authority is also required. However, under these conditions, it is possible to determine the content of the message.

In divorce cases, the Family Court cannot request the identification of message content. The Family Court can only obtain the time, number, and date the message was sent from the relevant operator. However, if the message sent by the parties is still on their phones, the content of the message 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 accepted as evidence exists in criminal law. This exceptional situation is also included in the case law of the Court of Cassation.

The Supreme Court Plenary emphasized an exceptional regulation in its decision, stating, “When a person is being tried for a crime committed against them, in sudden and unavoidable circumstances, where it is necessary to record the other party’s statements in order to obtain evidence, it is possible to apply to the authorities. Otherwise, the evidence will be lost and cannot be obtained again.”

In the Supreme Court’s case law, exceptions have been made to the concept of unlawful evidence in both criminal and civil proceedings, creating separate situations.

Blog

Bir yanıt yazın Yanıtı iptal et