12th Criminal Chamber
Case Number: 2017/150
Decision Number: 2017/6231
“Text of Justice”
Court: First Instance Criminal Court
Crime: Violation of privacy
Decision: Acquittal
Upon the participant’s appeal against the Istanbul Anatolia 2nd Criminal Court of First Instance’s decision dated 26.01.2016 and numbered 2015/503-2016/33, pursuant to the third paragraph of Article 307 of the Criminal Procedure Code, amended by Article 36 of Law No. 6763, the case file was sent to our Chamber for review of the appeal decision; it was re-examined and deemed necessary:
In the case file reviewed, the defendant was charged with violating the privacy of private life under Article 134/2 of the Turkish Penal Code (TCK) “… …the crime of violating the privacy of private life as defined in the article, as a result of the trial, the defendant’s defense, the participant’s statement, the documents in the file, and the file as a whole; it could not be determined with certainty when the defendant, who had been friends with the participant for some time, uploaded the photo to the website called Facebook, that is, it could not be determined with certainty whether he uploaded it without consent after separating from the participant. The decision of the 12th Criminal Chamber of the Court of Cassation dated 11.05.2015 and numbered 2015/35; “…
In the case where the defendant and the participant had been friends for some time and then ended their friendship, the defendant published photos taken with the participant on his Facebook page and did not remove the photos in question despite the participant’s request to remove them after the friendship ended;
According to the participant’s statement, although the exact dates of the photos kept by the defendant and the participant until September 2012 and the photos taken during their relationship are unknown, they were uploaded to Facebook by the defendant during their relationship, and the participant did not object at that time.
The participant wanted to end the relationship with the defendant in September, but the defendant wanted to continue the relationship. In October 2012, the participant filed a criminal complaint against the defendant, alleging that the defendant had threatened her, but later withdrew her complaint regarding the threatening act. According to the participant’s statement dated 12/12/2012, the photos in question were still shared on the defendant’s Facebook page and, as stated in the indictment, it was determined that the photos were on the defendant’s Facebook page as of the date of the complaint.
Considering that the defendant removed the photos in question at the end of December 2012, the participant’s statement indicates that she filed a complaint for the crime of threat before the date of the complaint and that the defendant sent her a message stating, “Regardless of whether I put these photos on my face or not, I will not be accountable to anyone. Know this.” Considering the participant’s message in September stating that she wanted to break up with the defendant, it must be accepted that the participant wanted to break up with the defendant in September, and even if the photos in question were shared on the defendant’s own page with the participant’s consent, the participant’s consent cannot be mentioned after the participant requested that the photos be removed, and although the photos were removed by the defendant, they were not published on the website called Facebook.
It is understood that the date of the complaint is not important; what is important is whether the participant’s consent continued as of the date of the complaint and whether the photos were available on Facebook, regardless of the fact that the defendant should be punished in accordance with Article 134/2-1 of the Turkish Criminal Code for publishing the photo taken with the participant on Facebook. It is not possible to determine exactly when the photograph taken together was uploaded to the Facebook site, i.e., whether it was uploaded without the participant’s consent after they separated. The acquittal decision, on the grounds that it did not comply with the formation and scope of the file,
was accepted and applied;
In the summary decision forming the basis of the judgment and in the operative part of the reasoned decision, no reference was made to the applicable law and Article 232/6 of the Criminal Procedure Code when the defendant was acquitted. It is understood that the acquittal decision dated 26.01.2016 was overturned on the grounds of “violation of Article 3” and that an appeal was filed against the court’s previous decision.
According to the decisions of the Criminal General Assembly of the Court of Cassation dated November 26, 2013, numbered 2013/50 and 2013/525, and its ongoing practices, even if an official decision has been made in favor of the appeal, it is necessary to act in accordance with the reversal decision, discuss the issues that should be addressed in the reversal decision, and rely on the research, investigation, and new evidence gathered after the reversal decision.
A decision issued with new and different grounds not included in the initial ruling and not reviewed by the relevant chamber is not, in essence, an act of resistance, but rather a new ruling issued as a result of active compliance with the violation. If an objection is raised against such a decision, the review must be conducted by the relevant chamber of the Court of Cassation.
Although the previous practice was adopted as a result of the decision issued by the local court following our chamber’s annulment decision; “…as a result of our court’s review and assessment; photographs considered to be related to the private life of the parties, if shared together on the defendant’s Facebook account during the relationship or if the complainant clearly consented to this, not removing the photographs from the page at the defendant’s request after the end of the relationship does not constitute an element of crime under Article 134/2 of the Turkish Penal Code.
The relevant article refers to the unlawful disclosure of photographs; however, once the defendant’s photographs began to be disclosed in this case, there can be no question of any unlawfulness. The purpose of the law is to prevent the unlawful disclosure of individuals’ private images or voices, and the photographs in question were lawful from the outset up to a certain point. It has been agreed that the act does not constitute a crime if one of the parties to the photograph, namely the complainant, consents to its disclosure. Consent and, at this point, the defendant’s inaction and failure to remove the images do not constitute the elements of the alleged crime.
Due to the fact that the court’s decision was deemed appropriate and the defendant was acquitted as follows…” Since the local court’s final appeal was not an appeal decision but a new ruling based on new and different grounds pursuant to Article 223/2-a of the Criminal Procedure Code, the appeal decision was accepted as an act of compliance. Upon examination, with the determination that the task of reviewing the ruling on appeal belongs to our Chamber:
Based on the evidence gathered and presented at the hearing, the court’s opinion and discretion in accordance with the prosecutor’s conclusions, and the scope of the case file reviewed, the participant’s other objections are rejected.
The defendant, with the victim’s knowledge, kissed the victim on the cheek, hugged her in one photo, and posed next to her in everyday clothes. After posting these photos on his Facebook account, he continued to publish them despite the end of his relationship with the victim and the victim’s request to remove the photos. Considering that the photos showing the existence and extent of the relationship between the defendant and the victim had previously been published on the Facebook social media site with the victim’s consent, it was concluded that these photos could not be considered images related to the victim’s private life and violating the privacy of her private life.
Since there is evidence that the defendant continued to publish photos of his personal data without the victim’s consent, violating her consent, it was concluded that this action violated Article 136/1 of the Turkish Penal Code. Since there was evidence that the defendant continued to publish photographs of personal data belonging to the victim in violation of the victim’s consent, he was tried for this act in accordance with Article 136/1 of the Turkish Penal Code. The defendant’s acquittal, based on legal and insufficient written grounds pursuant to Article 223/2-a of the Criminal Code, was overturned on September 13, 2017, by unanimous decision, regardless of the necessity of conviction for the crime of unlawful disclosure or acquisition of data.
was unanimously overturned on 13.09.2017, contrary to the request, pursuant to Article 321 of the Criminal Code No. 1412, and this ruling is still in force pursuant to Article 8 of Law No. 5320.