According to Article 206 of the Code of Criminal Procedure, any evidence obtained by unlawful means is inadmissible. According to Article 22 of the Constitution, the confidentiality of communications is a fundamental right. Article 20 of the Constitution stipulates that private life shall not be infringed upon. However, if it is certain that evidence will be lost and cannot be proven again in the event of an attack against a person, the evidence obtained will be admissible. In the case in question, even if the person obtained evidence of a threat against them through unlawful means while arguing with the assailant, since there was no opportunity to contact the competent authorities at that moment and the evidence would be lost, the audio recording of the incident will have evidentiary value. You may review the sample Supreme Court decision.
Criminal Chamber
Case No.: 2021/6097
Decision No.: 2021/10635
“Text of the Judgment”
DECISION
As a result of the investigation conducted against the suspect for the crime of threats… …, the decision of the Foça Chief Prosecutor’s Office dated November 5, 2018, and numbered 2018/2533, regarding the decision not to prosecute, is included as an attachment to the complainant’s petition… … along with the acceptance of the objection. Pursuant to the decision of the Karşıyaka 1st Criminal Court of Peace dated November 29, 2018, No. 2018/2752, regarding the extension of the investigation, it was noted that the DVD recording used as evidence required examination by an expert; the Foça Chief Prosecutor’s Office remedied this deficiency and forwarded the file to the competent authority for re-examination.
As a result of the review, upon the Ministry of Justice’s request to overturn the decision of the Karşıyaka 1st Criminal Court of Peace dated July 30, 2019, and numbered 2018/2752, which had rejected the objection, the file, which was forwarded to our Chamber via a request letter dated January 22, 2021, and numbered 2021/4384 from the Chief Prosecutor’s Office of the Court of Cassation, was reviewed.
The request letter states:
“Pursuant to Article 160 of Law No. 5271, as soon as the Public Prosecutor becomes aware of a situation—whether through a report or other means—that gives the impression that a crime has been committed, he or she must immediately initiate an investigation to determine whether there is sufficient evidence to bring a public prosecution. 2. If, as a result of the evaluation conducted pursuant to Article 172 of the Law, the Public Prosecutor concludes that the evidence gathered establishes sufficient suspicion that a crime has been committed, he or she shall file an indictment to initiate a public prosecution; Pursuant to Article 173/3, however, if the Public Prosecutor fails to fulfill their investigative duties or fails to conduct an investigation in accordance with the law, the competent authority reviewing the objection may decide to accept the objection to enable the Public Prosecutor to conduct the investigation;
Based on the case file, at the conclusion of the investigation into the allegation that, on the day of the incident, while the suspect and the complainant were meeting to discuss the situation, the suspect threatened the complainant by saying, “I’ll bury your body,” the parties stated that there was animosity between the complainant—who worked on the farm taken over by the suspect—and the suspect. Following the decision that there were no grounds for prosecution—based on the fact that there was animosity among the witnesses at the scene, … … the complainant’s and suspects’ claims were not corroborated, and no evidence other than an unsubstantiated allegation existed—the DVD recording attached to the complainant’s appeal was submitted to the expert upon the complainant’s appeal of the aforementioned decision.
Pursuant to the decision of the Karşıyaka 1st Criminal Court of Peace dated November 29, 2018, No. 2018/2752, regarding the extension of the investigation, and the notice stating that the investigation must be conducted, the notification dated July 1, 2019, regarding the transcription of the aforementioned DVD recording stated that although the initial expert report had been received and the case had been referred back to the court for a new ruling following an objection, the objection was rejected on the grounds that “…apart from the complainant’s abstract allegations and the unlawful audio recording made as part of a plan, there are insufficient grounds to initiate a public prosecution…”
According to the expert report dated July 1, 2019, included in the case file, there was no hesitation on the part of the suspect when he used the phrase “I’ll take you down right here” during the conversation, and the complainant was compelled to prevent an unjustified attack against him due to the hostility between him and the suspect and to prevent the loss of potential evidence. As evident from the available footage, the suspect was aware of the recording, and there were no words or actions indicating that the complainant objected to the recording; under these circumstances, the recording in question was made secretly and without the suspect’s knowledge in a systematic and planned manner to produce evidence and cannot be accepted as admissible evidence.
The recording in question should be evaluated as evidence; therefore, although there was sufficient evidence and reasonable suspicion to initiate a public prosecution against the complainant, the decision to accept the objection rather than reject it in writing was incorrect.
Legal Assessment: Articles 20 and 22 of the Constitution of the Republic of Turkey guarantee the principle of the privacy of individuals’ private lives and communications. Article 8 of the European Convention on Human Rights, an international treaty, protects the right to privacy, while Article 6 regulates the right to a fair trial.
. Again, in the case law of the European Court of Human Rights, it has been held that evidence obtained unlawfully in violation of the principle of the right to privacy constitutes a violation of the relevant provisions of the Convention (see the Shenk v. Switzerland judgment of July 12, 1988, regarding Article 6, §§ 30–48; Dr. …, The Right to a Fair Trial, 3.B. 2008, p. 291; regarding Article 8, the Malone v. United Kingdom judgment dated April 26, 1985, and the France v. Kruslin/Huoin judgment). April 24, 1990 et seq., Prof. Dr. …, Turkey’s As for the provisions in our domestic law, Articles 206/2-a and 217/2 of the Criminal Procedure Code No. 5271 stipulate that evidence obtained in violation of the law may not form the basis of a judgment.
On the other hand, Article 254/2 of the former Criminal Procedure Code No. 1412, which regulated criminal proceedings, was amended by Law No. 3842 dated November 18, 1992. This provision states that “evidence obtained unlawfully by investigative and prosecutorial authorities may not be used as the basis for a judgment.” Regarding evidence obtained by individuals during the period covered by the aforementioned law, the Constitutional Court’s Decision No. 1999/2 dated June 22, 2001, and CMB Decision No. 2001/2 made the following determinations:
Prohibited evidence… The evidence referred to in the article consists of evidence obtained through unlawful means. Unlawfulness implies a violation of universally accepted legal principles and all rules of positive law. In this sense, it has a broader scope than mere unlawfulness. If there is a serious interference with constitutional rights, evidence obtained by private individuals through unlawful means must also fall within the scope of the exclusionary rule. This is because the primary purpose of the exclusionary rule is to protect fundamental human rights and freedoms.
The opposing view effectively permits private individuals to violate the fundamental rights and freedoms of others, which is unacceptable in a state governed by the rule of law. Pursuant to Article 254/2 of the Code of Criminal Procedure, courts may not consider evidence obtained through violations of human rights.
The most fundamental rights of individuals whose private conversations were recorded have been violated. This is because Article 20 of the Constitution guarantees the inviolability of privacy, and Article 22 establishes the principle of the confidentiality of communications.
If this practice is allowed to continue, the legal provision regarding the exclusion of evidence—which is one of the fundamental rules of the rule of law and derives its existence from the principle of the rule of law enshrined in Article 2 of the Constitution—will lose all its effect. The “principle of fair treatment,” which is one of the principles of our procedural law, also does not permit the use of evidence obtained in this manner. The right to a fair trial, as set forth in Article 6 of the European Convention on Human Rights, requires that individuals be tried within the framework of the rule of law. A violation of this rule would undermine the fairness of the proceedings and violate the principle of fair treatment.
In light of legal regulations and judicial precedents, only audio and video recordings of individuals made in accordance with the law and due process have evidentiary value. On the other hand, since the covert recording of a person’s conversation is contrary to the law, such recordings cannot be considered as evidence. However, as stated in the YCGK decisions dated May 21, 2013, No. 2012/5 and No. 2013/248, and dated December 13, 2018, No. 2017/5 and No. 2018/639, which were accepted by our Chamber, a person is accused of a crime committed against them. In urgent situations where there is no other means of obtaining evidence and no possibility of appealing to the competent authorities, it must be accepted that recording conversations with the opposing party is lawful. Otherwise, the evidence will be lost and cannot be recovered.
In the case file under review, it was noted that there was hostility between the suspect and the complainant. …at the farm he claimed to have taken over from… At the conclusion of the investigation into the incident, it was ruled that there was no need to file a lawsuit on the grounds that there was hostility between the parties, the statements of witnesses present at the scene did not corroborate the complainants’ claims, and there was no evidence other than a mere allegation.
Following an appeal against this decision after the complainant’s death, based on the decision of the Karşıyaka 1st Criminal Court of Peace dated November 29, 2018, No. 2018/2752—which pertained to the incident and was attached to the appeal petition—regarding the expert examination of the DVD recording; In the expert report dated July 1, 2019, regarding the analysis of the DVD recording, the Karşıyaka 1st Criminal Court of First Instance’s decision dated July 30, 2019, No. 2018/2752, it is understood that “…
the objection was rejected on the grounds that there were insufficient grounds to initiate a public prosecution regarding the complainant’s abstract allegations and the unlawful evidence obtained as part of the planning process.” It is clear that the complainant made the audio recording in a sudden situation—at a moment when he was unable to obtain further evidence regarding a crime committed against him and had no opportunity to appeal to the competent authorities—during a conversation with the suspect. Making an audio recording as part of a premeditated plan is not possible. For the reasons explained, rejecting the objection rather than accepting it is contrary to the law.
Conclusion and Decision:
For the reasons explained above;
In accordance with the opinion set forth in the statement issued by the Chief Prosecutor’s Office; and in accordance with the decision deemed appropriate by the Court of Cassation in response to the request to overturn the law,
1- The decision of the Karşıyaka 1st Criminal Peace Court dated July 30, 2019, and numbered 2018/2752, has been set aside pursuant to Article 309 of the Code of Criminal Procedure (No. 5271).
2- Pursuant to Article 309(4)(a) of the Criminal Procedure Code, it was decided by unanimous vote on March 24, 2021, that subsequent proceedings be completed as appropriate and that the case file be forwarded to the Supreme Court Prosecutor’s Office for submission to the Ministry of Justice.