12th Criminal Chamber
Base Number: 2017/150
Decision Number: 2017/6231
“Justice Text”
Court: Criminal Court of First Instance
Crime: Violation of privacy
Judgment: Acquittal
The resistance decision of the Istanbul Anatolian 2nd Criminal Court of First Instance, dated 26.01.2016 and numbered 2015/503-2016/33, was appealed by the participant and pursuant to the 3rd paragraph of Article 307 of the CCP, amended by Article 36 of the Law No. 6763, the General Criminal Court of Appeals. By sending the file to our Department for the examination of the decision of resistance by the Board; It was re-examined and considered necessary:
In the examined file, the defendant, TCK 134/2. For the crime of violating the confidentiality of private life defined in the article “… As a result of the trial, the defense of the accused, the statement of the participant, the document in the file and the whole file; The date on which the photograph of the accused, who had been friends with the participant for a while, was uploaded to the website named Facebook could not be determined exactly, that is, it could not be determined exactly whether he uploaded it without his consent after breaking up with the participant. The decision of the 12th Criminal Chamber of the Court of Cassation, dated 11.05.2015 and numbered 2015/35, decision no. with;
“… In the incident where the accused and the participant were friends for a while, then their friendship ended, the accused posted the photos taken together with the participant and the accused together on his own facebook page, after the friendship ended, the accused did not remove the photos in question despite the request from the accused to remove the photos,
According to the statement of the participant, although the exact date of the photos that the accused and the participant maintained until September 2012 and the photos they took during the period they were together, were put on Facebook by the defendant during the time they were together, and the participant did not object to this as of that period. , he wanted to break up with the accused in September, but the accused wanted to continue the relationship, in October 2012, the participant filed a criminal complaint against the accused with the allegation that the accused threatened him, but later on, the participant gave up the complaint about the threatening act, later by the participant 12/12 In 2012, it was stated that the photographs in question were still shared on the defendant’s facebook page, and as stated in the indictment, the photographs were found on the defendant’s facebook page as of the date of the complaint. Considering that he removed the aforementioned photos at the end of December 2012, it is stated in his statement that the participant complained about the crime of threatening before the date of the complaint, and in the message sent by the accused to the participant, “In those pictures, I will not give an account to anyone, whether I put them on my face or not. know it like that.” Considering the message that the participant wanted to leave the defendant in September, it should be accepted that the participant wanted to leave the defendant in September and although the photos in question were shared on the defendant’s own page with the consent of the participant, the consent of the participant could not be mentioned after the participant asked to remove the photos, and the photos were not posted on the website named facebook, although the defendant had to remove them. It is understood that the date of the complaint is not important, the important issue is whether the consent of the participant continues as of the date of the complaint and whether the photos are available on Facebook, regardless of the fact that the defendant should be punished in accordance with the 134/2-1 sentence of the TCK, which complies with the act of publishing the photograph taken next to the participant on Facebook. It is not possible to determine the exact date of uploading the photo taken together on the Facebook website, that is, whether he uploaded it without his consent after breaking up with the participant. the decision of acquittal on the grounds that it does not comply with the formation and the scope of the file,
According to acceptance and application;
In the short decision that constitutes the basis of the judgment and in the judgment part of the reasoned decision, when the acquittal verdict was established for the accused, the applicable law and article 232/6 of the CMK were not shown. It is understood that the verdict of acquittal dated 26.01.2016 was established by stating that it was overturned based on the reasons of “acting in violation of the article of 3” and the previous decision of the court was resisted.
According to the decision of the Criminal General Assembly of the Court of Cassation dated 26.11.2013, numbered 2013/50, 2013/525 and its continuous practices, even if a formal decision to resist is given; to take action in line with the reversal decision, to discuss the issues that should be discussed in the reversal decision, to rely on the research, examination and new evidence collected after the reversal
, the decision made by making a judgment on new and different grounds that were not included in the first decision and did not pass the inspection of the chamber; It is not in the nature of resistance in essence, but is a new provision given as a result of active compliance with breaking. If a judgment of this nature is appealed, the examination must be made by the relevant chamber of the Court of Cassation.
Although the previous practice was adopted as a result of the judgment made by the local court after the annulment decision of our chamber; “…as a result of the examination and evaluation made by our court on the reversal; It is not appropriate to disrupt, the pictures that will be deemed to be related to private life between the parties are shared on the defendant’s facebook account together during the relationship process or the complainant expressly consents to this, the fact that the pictures are not removed from the page when requested from the accused after the end of the relationship will not constitute the elements of the crime in terms of Article 134/2 of the TCK, the relevant article It is also mentioned that the unlawful disclosure of the images is mentioned, however, when the pictures of the accused begin to be disclosed in the incident, no illegality can be mentioned, the aim of the law is to prevent the unlawful disclosure of the private images or voices of the persons, and that the pictures that are the subject of the crime are legal from the beginning to a certain stage. It is agreed that the act will not turn into a crime as soon as it is disclosed appropriately, at the point where one of the parties of the picture, namely the complainant, obtains the consent, and at this point, the defendant’s inaction and failure to remove the pictures will not constitute the elements of the alleged crime. Because of the fact that the court’s decision was considered appropriate and the defendant was acquitted as follows…” As the last application of the local court was not a decision of resistance, but a new provision, due to the new and different justifications as per Article 223/2-a of the CMK, the decision of resistance was accepted as an act of compliance. In the examination carried out by determining that the duty of reviewing the judgment on appeal belongs to our Department:
Rejection of other objections of the participant, according to the trial, the evidence gathered and shown at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the examined file;
After the accused, with the knowledge of the victim, published the photographs of the victim kissing him on the cheek in one frame, hugging him in the others and posing side by side with both of them in their daily clothes, on his facebook account, the said photographs continued to be published despite the fact that they broke up with the victim and were asked to be removed by the victim. in the event;
In the face of the fact that the photographs showing the existence and extent of the relationship between the accused and the victim, were previously published on the social networking site Facebook in accordance with the consent of the victim, these photos cannot be considered as images related to the private life of the victim and violating the privacy of his private life. Article 136/1 of the TCK for his act, which found evidence that he continued to publish photographs of personal data belonging to him in violation of the consent of the victim. Decision of acquittal of the accused pursuant to article 223/2-a of the CMK on legal and insufficient written grounds, regardless of the necessity of a conviction for the crime of illegally giving or seizing the data in the article,
It was unanimously decided on 13.09.2017 that the judgment be overturned, contrary to the request, pursuant to Article 321 of the Criminal Code No. 1412, which is still in effect pursuant to Article 8 of the Law No. 5320.
