TC SUPREME
COURT OF APPEALS
E. 2007/17220 K. 2008/13614 T. 20.10.2008
CASE:
A., who filed an appeal on 14.10.2008, was summoned to the hearing upon the request for the review of the decision rendered by the local court at the end of the litigation process between the parties. They appeared at the hearing with their attorney, Av.GT. The other party did not appear despite being notified. After listening to the guest’s statement, it was deemed appropriate to review the case after the hearing and make a decision. Today, all documents in the file were read, discussed, and deemed necessary:
DECISION:
In this case; Regarding the CD containing audio recordings submitted as evidence to the court by the plaintiff-defendant husband, it was argued that the defendant’s “private life” was unlawfully violated and therefore could not be used as evidence; It was decided that “the audio recording submitted as evidence by the plaintiff’s spouse was created unlawfully by violating the privacy of the private life without the defendant’s knowledge, and therefore cannot be respected” and “no other evidence has been presented showing that the defendant husband acted contrary to his duty of fidelity,” and the plaintiff-defendant husband’s divorce case was dismissed.
lass=”yoast-text-mark” />>The evidence was obtained through a system set up by the husband without the defendant’s knowledge in the home where the spouses lived together. T he expert examination found that the voice recordings on the CD were original and that there were no additions, deletions, interruptions, or copies on them. The defendant-plaintiff does not claim that the recorded conversations belong to him, but instead objects, stating that this evidence was obtained through a violation of the privacy of his private life.
There is no doubt that if the evidence was obtained through a violation of the individual rights recognized by the Constitution, it must be accepted that it was obtained unlawfully. If there are reasons for complying with the law in obtaining evidence, the unlawfulness ceases to exist. Undoubtedly, according to the Constitution, everyone has the right to demand respect for their private and family life. The privacy of your private and family life is inviolable. (Constitution, Art. 20/1) However, in a marriage, it is also a legal obligation for spouses to remain faithful to each other during the marriage.
(TMC, Art. 185/3) In this regard, the private life of one spouse is as closely related to the private life of the other spouse, whom they met through marriage and with whom they live together. (Decision No. 185/3) Therefore, in marriage, the scope of legal obligations relating to the marital union is not the private life of each spouse, but the family life. In this area, not only the privacy and inviolability of the spouses’ private lives, but also that of family life as a whole, is important and takes precedence. In this context, the area of legal obligations relating to the marital union is not inviolable for the other spouse.
Therefore, if the plaintiff-defendant, who suspects their spouse’s fidelity, places a voice recording device without their spouse’s knowledge to record secret conversations while both live together in a shared living space, this constitutes a violation of privacy and may be considered behavior incompatible with the obligation of fidelity and cannot be deemed unlawful. On the contrary, the defendant’s acceptance of friends into the shared living space for unlawful purposes constitutes a violation of the privacy of family life. In this context, it cannot be said that there was any illegality in obtaining the evidence in question.
Subsequently, as a result of the investigation and the evidence gathered, it was understood that the defendant-plaintiff had brought his friends, including those of the opposite sex, into the shared home for an illegitimate purpose and had violated his duty of fidelity. In this case, there is a permanent and ongoing moral problem between the parties; this situation will fundamentally shake the shared life and will not allow the marriage to continue. The plaintiff is justified in filing a lawsuit in light of the events that have occurred. Under these circumstances, since it is considered that it is no longer legally possible to force the spouses to live together, the divorce case filed by the plaintiff-defendant husband should be accepted, and the rejection of the request is not considered correct.
CONCLUSION:
For the reasons explained above, there is no justification for the plaintiff-defendant husband’s violation of the ruling regarding the acceptance of his appeal. The other aspects of the ruling must be examined based on the reason for the violation. The attorney’s fee of UAH 550.00, which was determined for the hearing, was unanimously decided on October 20, 2008, to be refunded to the appellant in advance, with the possibility of correcting the decision within 15 days of notification of this decision.