According to article 206 of the Criminal Procedure Code, any evidence obtained illegally is invalid. Again, by Article 22 of the Constitution, the confidentiality of communication is essential. Article 20 of the Constitution states that private life cannot be touched. However, if there is a certainty that the evidence will be lost in the attack directed against the person and that it will not be possible to prove it again, the evidence he will receive will be binding. In the event in question, even if the person obtained the evidence of the threat against him illegally while he was arguing with the attacker, it would be of evidentiary value to take a sound recording of the sudden event, since there is no opportunity to apply to the competent authorities at that time and the evidence will be lost. You can review the sample Supreme Court Decision.
4th Criminal Chamber
Base Number: 2021/6097
Decision Number: 2021/10635
“Justice Text”
DECISION
As a result of the investigation phase made against the suspect of the threat crime … …, the decision of the Foça Chief Public Prosecutor’s Office dated 05.11.2018 and numbered 2018/2533, regarding the decision not to prosecute, is included in the appendix of the petition of the complainant … … with the acceptance of the objection. Following the decision of the Karşıyaka 1st Criminal Court of Peace, dated 29/11/2018 and with the different job number 2018/2752, regarding the extension of the investigation, with the mention that the DVD recording that took the record should be resolved by the expert, the Foça Chief Public Prosecutor’s Office completed the aforementioned deficiency and sent the file to the authority for a re-decision, At the end of the examination, upon the request of the Ministry of Justice to overturn the decision of the Karşıyaka 1st Criminal Judgeship of Peace dated 30/07/2019 and numbered 2018/2752 regarding the rejection of the objection, the Court of Cassation Chief Public Prosecutor’s Office dated 22.01.2021 and numbered 2021/4384. The case file sent to our Department with a request letter was examined.
In the request letter;
“According to Article 160 of Law No. 5271, the Public Prosecutor should immediately start investigating the truth of the matter to decide whether there is room for filing a public lawsuit as soon as he learns of a situation giving the impression that a crime has been committed through denunciation or other means. 2nd. As a result of the evaluation made by Article 172 of the Law, when he concludes that the collected evidence creates sufficient suspicion that the crime has been committed, he will file an indictment and file a public lawsuit; 173/3 of the aforementioned Law, if he does not fulfil his duty of investigation and that there is no investigation by the law. Against the statements that the authority examining the objection may decide to accept the objection to enable the Public Prosecutor to conduct an investigation;
According to the scope of the file; At the end of the investigation carried out due to the concrete incident in which it was alleged that the suspect had threatened the complainant by saying “I will lay his corpse” during the conversation when the complainant and the suspect met to discuss the situation on the date of the incident, the parties said that there was enmity with the complainant who was working on the farm that the suspect had taken over. Following the decision that there were no grounds for prosecution because the witnesses were hostile at the crime scene, that … … did not confirm the allegations of the complainant suspects, and that there was no evidence other than the abstract claim, upon the complainant’s objection to the said decision, the DVD recording attached to the objection petition was attached to the expert witness. Following the decision of the Karşıyaka 1st Criminal Court of Peace, dated 29/11/2018 and numbered 2018/2752, regarding the extension of the investigation, with the mention that an investigation should be carried out, the notification dated 01/07/2019 regarding the resolution of the DVD recording in question. Although the court, where the first person report was taken and the file was sent again for a decision on the objection, it was decided to reject the objection because “…except for the abstract claims of the complainant and the unlawful audio recording he took within a planning, there were not sufficient grounds for a public auction to be filed …”;
According to the expert report dated 01/07/2019 found in the file, there was no hesitation about the suspect’s use of the sentence “I will extend you here” against the suspect during the conversation, and that the complainant should prevent an unjust attack against him due to the hostility between him and the suspect and ensure the loss of evidence that may be lost. It is understood from the available footage that the suspect was aware of the recording, no words or actions were taken to indicate the object of the complainant against the recording, in this case, the aforementioned recording was recorded secretly/unannounced to produce evidence in a systematic and planned manner. Since it cannot be accepted as evidence obtained and the said record should be evaluated as evidence, it is decided to reject the objection in writing instead of accepting it, even though there is sufficient evidence and suspicion to open a public case for the crime against the complainant. There was no-hit in giving r.” is called.
Legal Evaluation:
In Articles 20 and 22 of the Constitution of the Republic of Turkey, the principles of confidentiality of individuals’ private lives and communications are guaranteed. Article 8 of the European Convention on Human Rights, which is one of the international texts, protects the privacy of private life and regulates the right to a fair trial in Article 6. Again, in the case-law of the European Court of Human Rights, it has been accepted that unlawful evidence obtained in violation of the principle of confidentiality of private life will constitute a violation of the provisions of the aforementioned Convention, (see Shenk-Switzerland decision dated 12.7.1988 in terms of Article 6, §§ 30-48; Dr. . …, Right to a Fair Trial, 3.B. 2008, p. 291; in terms of Article 8, Malone v. England dated 26.4.1985 and France-Kruslin / Huoin judgment of 24.4.1990 et al., Prof. Dr. …, Turkey’ As for the regulation in our domestic law, Articles 206/2-a and 217/2 of the Code of Criminal Procedure numbered 5271 explain that evidence contrary to the law and the law cannot be taken as a basis for the judgment.
On the other hand, 254/2 of CMUK numbered 1412, which was previously in force and regulates criminal proceedings, amended by Law No. 3842 and dated 18.11.1992. In the article, it is stated that “evidence obtained unlawfully by the investigation and prosecution organs cannot be taken as the basis of the judgment”. Regarding the evidence obtained by private individuals during the aforementioned Law period, the following determinations were made in the Constitutional Court’s decision dated 22.6.2001 and numbered 1999/2 and CMB 2001/2: Evidence prohibited in the article is the evidence obtained illegally. What is meant by illegality is the violation of accepted universal principles of law together with all positive law rules. In this sense, it has a wider content than illegality. If there is a serious interference with the constitutional rights, the evidence obtained illegally by private persons should also be covered by the prohibition of evidence. Because the main purpose of the prohibition of evidence is to protect basic human rights and freedoms. Advocating an opposite view allows private individuals to violate individuals’ fundamental rights and freedoms, which is unacceptable in a state of law. The courts can’t consider the evidence obtained by violating human rights due to the provision of CMUK 254/2.
The most basic rights of people whose private conversations are recorded have been violated. Because in the 20th article of the Constitution, the privacy of private life is inviolable, and in the 22nd article of the Constitution, the confidentiality of communication is essential. Once this road is opened, the article of law regarding the prohibition of evidence, which is one of the basic rules of the rule of law and which derives its existence from the principle of the rule of law in Article 2 of the Constitution, will lose all its effect. One of the principles in our procedural law, the “principle of fair dealing” also does not allow the use of evidence obtained in this way. The right to a fair/honest trial regulated in Article 6 of the European Convention on Human Rights envisages that individuals be tried within the rule of law framework. Violation of this rule will violate the fairness of the transaction and the principle of fair dealing.”
In the face of the legal regulations and judicial precedents, only audio and video recordings of persons recorded by the law and method have the quality of evidence. On the other hand, since it is against the law to record the conversation of a person secretly, it is not possible to evaluate it as evidence. However, as stated in the decisions of the YCGK dated 21.05.2013 and numbered 2012/5, and 2013/248 and dated 13.12.2018 and 2017/5, and numbered 2018/639, adopted by our Department, a person is charged with a crime that is being committed against him/herself. It is obligatory to accept that it is legal to record the conversations with the other party in sudden situations where there is no opportunity to obtain further evidence and there is no opportunity to apply to the competent authorities. Otherwise, the evidence is lost and cannot be obtained again.
The file examined states that there is hostility between the suspect and the complainant working on the farm that he said he took over from ……. At the end of the investigation carried out due to the incident, after it was decided that the parties were hostile, that the witnesses present at the crime scene did not confirm the allegations of the complainant suspects, that there was no evidence other than the abstract claim after it was decided that there was no ground for prosecution, upon the objection of the complainant to this decision, regarding the incident attached to the petition of objection. Upon the decision of the Karşıyaka 1st Criminal Court of Peace, dated 29/11/2018 and numbered 2018/2752, regarding the extension of the investigation, with the mention of the need for an expert examination of the DVD recording, which is stated to be the DVD recording in question, on 01/07/201 for the resolution of the DVD recording in question. According to the decision of the Karşıyaka 1st Criminal Court of Peace dated 30.07.2019, with the different job number 2018/2752, in which an expert report dated 9 was prepared, “…except for the abstract claims of the complainant and the audio recording that is unlawful evidence obtained within planning, there are sufficient grounds for filing a public lawsuit. It was understood that the objection was rejected because there was no…” It is clear that during the discussion with the suspect, the complainant received a voice recording in a sudden situation where he had no opportunity to obtain any more evidence regarding a crime being committed against him and he did not have the opportunity to apply to the competent authorities. It is not possible to make a sound recording within a plan. It is unlawful to decide to reject the objection instead of accepting it for the reasons explained.
Conclusion and Decision:
For the reasons explained above;
Since the opinion in the communiqué issued by the Chief Public Prosecutor’s Office of the Court of Cassation in line with the request of reversing the law is appropriate,
1-The decision of the Karşıyaka 1st Criminal Judgeship of Peace, dated 30/07/2019 and with the different job number 2018/2752, is overturned by Article 309 of the CMK no. 5271,
2- According to paragraph 4-a of Article 309 of the CMK, it was unanimously decided on 24.03.2021 that the next proceedings be completed on-site, and that the file be submitted to the Office of the Chief Public Prosecutor of the Court of Cassation to be submitted to the Supreme Ministry of Justice.
