If the existence of the right is necessary and sufficient in the relations between the parties, it Dec necessary to prove it in order for the existing right to be accepted before the court. To prove it means to be able to convince the judge of the existence of a case. Proof of rightfulness is the main element of the conclusion that will be obtained as a result of the court.
Proof and Decisiveness are parallel concepts in our legal system, but there are nuances between them. Proof provides for the conviction of an existing case in the presence of a court, while plausibility provides for the possibility(denial of a judge, false testimony, fair trial, etc.) is to reveal.
The most important and basic concept of the law of proof is ‘evidence’. From the point of view of legal procedure, evidence is a means of proof that creates a dispute, or rather, serves to form an opinion in a judge about whether the case that he allegedly created has taken place has taken place. The subject of evidence is events, with the exception of exceptions. The rules of law and the 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 order for proof.[1] There are a number of limitations on the evaluation of evidence. The authority of the judicial authority in this regard is limited in some cases by the legislator. One of these limitations is that the evidence is obtained in accordance with the law. If the evidence used to prove the existence of the right is contrary to the law, the main rule is that this evidence is not used by the judicial authority. Although this is the main rule, a number of exceptions have been made to this situation by judicial case law and international rules.
Since the concept of evidence is a very broad concept, in this article it will be enough to mention the place of the evidence obtained as a result of ‘audio recording / ambient listening’, which has often come up in criminal proceedings and divorce cases in recent days, in the law of proof.
What is the Legality of the Audio Recording?
The concepts known as ambient listening and sound recording are the concepts that criminal and civil proceedings focus on. With the recent technological developments, almost everyone now wants to listen to phone calls with the applications they have purchased and use them as a means of proving their truth, they place a device in the environment and perform a kind of ambient listening.
The concept of obtaining an audio recording and obtaining private data without notice is an extension of the right to privacy of private life guaranteed by the Constitution. The right to privacy of private life is a right that has developed in parallel with the advances in modernization and technology, unlike traditional rights (such as the right to life, the right to property, etc.). The right to privacy of private life gives the individual the right to demand that everything related to him remain confidential, not expressed, not recorded, not shown and not violated.
Article 8 of the European Convention on Human Rights According to the article, the state has negative and positive obligations regarding the protection of private life. In this context, while the state has a negative obligation not to interfere in private life, it is also a positive obligation for a private person to prevent others from acting in ways that will prevent them from effectively exercising these rights.
As a rule, when viewed within the framework of fundamental rights, audio recordings taken without anyone knowing can be considered evidence of violation of the law, as well as a crime. There are two main exceptions to this situation. The first of these is observed in divorce cases, the second in criminal cases. (Is it a Crime to Secretly Record Audio in relation to criminal cases? you can read our article)
Unlawful Evidence in Divorce Cases
Divorce cases are a type of case that differs from the basic systematics of the law in the evaluation of evidence and is based on many rules established by practice. In practice, many people cannot file for divorce with a bet that these records cannot be used, even if they open them, they lose their rights for not providing these evidence, even though they have audio recordings that prove the reasons that require the termination of the marriage union.
However, the Supreme Court underlined that when evaluating an evidence, it should be evaluated separately in terms of obtaining it illegally and producing it illegally:
“The CD based on the judgment of the court was created as a result of a fiction to be used as evidence in a divorce case just as it was recorded without the consent of the defendant woman. In that case, it is not possible to base this evidence, which was created in this way and created irregularly, on the judgment.” T.C. GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW E. 2011/2-703 K. 2012/70 T. 15.2.2012
“As stated above, the irregular receipt of an evidence is a separate, irregular creation is a separate event. Although an irregularly obtained piece of evidence can be evaluated according to the nature of the concrete event, it is not possible to accept an irregularly created piece of evidence as evidence in any way. It is also understood from the audio recordings made by the expert witness that the plaintiff’s conversations were recorded by the other defendants at the direction of defendant Berrin, who was unaware of him, and that the defendants who recorded them were trying to talk to the plaintiff and direct him. Therefore, it is fixed by the scope of the file that this evidence was obtained unlawfully.” T.C. GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW E. 2013/4-1183 K. 2014/960 T. 26.11.2014
In addition, images taken on social media tools (such as facebook, twitter) in divorce cases may also be presented as evidence. In accordance with the Dec that there will be no privacy between family members, spouses will also be able to use this data in a divorce case.
In its decision issued in 2007, the Supreme Court of Cassation drew the boundaries of the area of Decisionship between the spouses as follows:
‘If the acquisition of evidence occurred through a violation of the rights recognized by the Constitution of persons, there is no hesitation that it will be necessary to accept that it was obtained unlawfully. If there are reasons for compliance with the law in obtaining evidence, then the violation of the law disappears. Undoubtedly, according to the Constitution; everyone has the right to demand that his private life and family life be respected. The privacy of private life and family life cannot be touched. However, in a marriage union, it is also a legal obligation for the spouses to remain faithful to each other for the duration of the marriage. [2] The Dec life of one of the spouses in relation to this area is as closely related to his other wife, who is his life partner, whom he met and lived with by marriage, as to his own. Therefore, in marriage, the sphere of legal obligations related to the marriage union is not the private sphere of life of each of the spouses, but the sphere of family life. Regarding this area, the privacy and inviolability of not only the private lives of the spouses individually, but also the family life as a whole are of importance and priority. In this regard, the sphere of legal obligations of marriage is not inviolable for the other spouse. Therefore, suspecting his wife’s Fidelity plaintiff-defendant, both live together in houses with common spaces, a voice recorder by placing the spouse without the knowledge of his wife’s non-public record conversations thus, in breach of privacy, with the obligation of loyalty can be a question of incompatible behaviors to identify, and can not be considered where it is contrary to law.’’
In accordance with this decision, it seems that it is possible to use an audio recording obtained in accordance with the law, that is, not created, as evidence in a divorce case.
“It is a case of divorce concerning the private life of people already and the husband of his wife, his wife took their place along with photos, letters, notebook or to be provided as evidence to the court, this evidence has not been achieved while in unlawful ways, will be assessed as evidence in court; a woman living in the same house is in a position to know that her husband can get hold of this evidence, that her husband has seized a notebook stored by the woman in a closet in the bedroom or under the bed, that this place cannot be considered a secret place for a woman because it is a place where the spouses lead a joint life; it has been emphasized that no one can be considered to have illegally seized evidence found in a place in their home, that the secret areas of private life can be proven by evidence related to the secret area of private life,”it has been accepted as daily evidence belonging to the defendant.” T.C. GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW E. 2002/2-617 K. 2002/648 T. 25.9.2002
However, it is of course unlikely that the audio recording that is not shown in the list of evidence and which the other party has not consented to will be based on:
“From the collected evidence it becomes clear that the plaintiff inflicted physical violence on his wife, insulted her, expelled her spouse, did not fulfill his union duties. The tape containing the audio recording allegedly belonging to the woman by the plaintiff is not included in the list of evidence, nor is the defendant’s consent to this, so it is not possible to accept this tape as evidence.” T.C. COURT OF CASSATION 2. DEPARTMENT OF LAW E. 2011/20038 K. 2012/28733 T. 30.11.2012
Court of Cassation 2. In the following decision of the Legal Department, even the conversations recorded by the husband on his wife’s mobile phone with a spy program were accepted as evidence in accordance with the law and the court’s decision was found to be correct and upheld. It is noteworthy that the member judge voted against it on the following grounds:
“In a divorce case that is being Decoupled between the parties, a cd containing audio recordings of the defendant-plaintiff (woman) presented to the court by the plaintiff-defendant (husband) as evidence.it has been suggested that the ’s were obtained illegally by violating the “privacy of the private life” of the defendant-plaintiff, therefore they cannot be used as evidence; it has been accepted by the court and the majority that the evidence obtained in this way can be evaluated.” T.C. COURT OF CASSATION 2. DEPARTMENT OF LAW E. 2012/21108 K. 2013/21067 T. 17.9.2013
But the Supreme Court 2. The Legal Department adopted the following decision, which changed its opinion on the above:
“Although the court has decided to accept both divorce cases by recognizing that the defendant-counter-plaintiff woman is more defective, from the trial and the evidence collected; according to other evidence in the file, it is understood that the actions of the defendant-counter-plaintiff woman are in the form of trust-shattering behavior, while the plaintiff-counter-defendant man has committed multiple acts of violence against his wife, his older brother has committed violence against the defendant-counter-plaintiff woman, and thus has remained silent about the intervention of his family.” T.C.COURT OF CASSATION 2. LEGAL DEPARTMENT Base Number: 2015/26667 Decision Number: 2017/4686 Decision Date: 24.04.2017
“Although the audio recording submitted by the plaintiff-defendant woman to the court has been taken into account in determining the defect, it is not possible to base the judgment on the reason that the audio recording was obtained unlawfully.” SUPREME COURT 2. LEGAL DEPARTMENT Case Number: 2016/34 Decision Number: 2017/6403 Decision Date: 29.05.2017
“from the trial and the collected evidence, the plaintiff-defendant has the woman removed as a disease for the defendant’s wife, who was charged as a defect by the court, “Allah….It is understood that the words ”do you know from” were included in the minutes of the decision of the cd regarding the audio recording created by the male. This evidence of an unlawful nature cannot be taken into account in determining a defect and cannot be charged as a defect to a woman.” SUPREME COURT 2. LEGAL DEPARTMENT Base Number: 2015/21364 Decision Number: 2016/15003 Decision Date: 21.11.2016
“The defendant’s defamation actions against his wife, his wife’s mother and his brother-in-law uploaded by the court are contained in the cd settlement minutes related to the audio recording created by the man. This evidence of an unlawful nature cannot be taken into account.” SUPREME COURT 2. LEGAL DEPARTMENT Base Number: 2015/19097 Decision Number: 2016/12155 Decision Date: 22.06.2016
Can Message Content Be Detected in a Divorce Case?
‘Whether the content of the message can be detected’ is one of the most frequently heard questions as the party’s attorneys during the divorce proceedings. 135 of the Code of Criminal Procedure. The article regulates the conditions under which the content of the message can be recorded. In accordance with this article, in order to determine the content of the message, there must be a strong suspicion that a crime has been committed, first of all, in a criminal investigation or prosecution. The presence of strong suspicion alone is not enough. In addition, the decision of the competent authority is required. However, in these conditions, the detection of the message content is possible.
In divorce cases, the determination of the content of the message cannot be requested from the Family Court. The Family Court will only be able to find out the time, number, day when the message was sent with the information it will ask the relevant operator for. However, if the message that the parties have sent is still on their phones, in this case, the contents of the message can be extracted from the existing phone.
Acceptance of Secretly Obtained Audio Recording as Evidence in Criminal Proceedings
The second exception, in which an audio recording taken in the environment without the knowledge of the counterparty is considered evidence, exists in criminal law. This exceptional case was also established by the case law of the Supreme Court.
In the decision of the General Board of the Supreme Criminal Court, “that is being processed in relation to a crime against oneself, a more sudden, and without the possibility exists the possibility of applying to the authorities to obtain evidence in situations where the opposing party to record his conversations with the adoption of the law of the state is mandatory. Otherwise, the evidence will be lost and will not be obtained again,” he said, emphasizing an exceptional arrangement.
Exceptions have been made to the concept of unlawful evidence in both criminal proceedings and civil proceedings by the practices of the Supreme Court, and discrete situations have been created.
