Pursuant to article 206 of the Criminal Procedure Code, any evidence obtained illegally is invalid. Again, in accordance with 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 had 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.
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 annex 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 reverse the decision of the Karşıyaka 1st Criminal Judgeship of Peace dated 30/07/2019 and with the different job number 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 in order to decide whether there is room for filing a public lawsuit as soon as he learns of a situation that gives the impression that a crime has been committed through denunciation or other means. 2nd. As a result of the evaluation made pursuant to Article 172 of the Law, when he comes to the conclusion 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, in the event that he does not fulfill the investigative duty assigned to him and that there is no investigation in accordance with the law. Against the statements that the authority examining the objection may decide to accept the objection in order 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 is claimed that the suspect threatened the complainant by saying “I will lay his corpse” during the conversation, when the suspect and the suspect met to discuss the situation on the date of the incident, and that there was enmity between him and the complainant working on the farm that the suspect had taken over. Following the decision not to prosecute on the grounds that there was hostility between the witnesses 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 on the grounds that “…except for the abstract claims of the complainant and the unlawful audio recording that he took within a planning, there are not sufficient grounds for a public action 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 had to prevent an unjust attack against him due to the hostility between him and the suspect, and to ensure the disappearance of the evidence that could possibly 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 objection of the complainant against the recording, in this case, the aforementioned recording was recorded secretly/unannounced in order to produce evidence in a systematic and planned way. cannot be accepted as evidence obtained.
Since the aforementioned record should be evaluated as evidence, it was not correct to decide to reject the objection in writing instead of accepting the objection, regardless of the fact that there is sufficient evidence and suspicion for the opening of a public case for the crime against the complainant. 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 decision dated 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 against the law and the law cannot be taken as a basis for the judgment.
On the other hand, 254/2 of the 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 the fundamental rights and freedoms of individuals, which is unacceptable in a state of law. It is not possible for the courts to 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, 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 honest action” 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 framework of the rule of law. 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 in accordance with 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 entitled to 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.
In the file examined, it is stated that there is hostility between the suspect and the complainant working on the farm that he has taken over from …… about dismissal, and it is claimed that when the complainant and the suspect met to discuss the situation on the date of the incident, the suspect threatened the complainant by saying “I will lay his body” during the conversation. At the end of the investigation carried out due to the incident, it was decided that there was no grounds for prosecution on the grounds that there was hostility between the parties, that … … from 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, and
Upon the complainant’s objection to this decision, 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 expert examination of the DVD recording, which is stated to be related to the event, attached to the appeal petition, should be made. An expert report dated 01/07/2019 was prepared on the resolution of the DVD recording and with the decision of the Karşıyaka 1st Criminal Court of Peace dated 30.07.2019, with a different job number 2018/2752, “…the abstract claims of the complainant and the unlawful evidence he received within a planning It was understood that the objection was dismissed on the grounds that there were not sufficient reasons for the filing of a public action, except for the registration of It is clear that the complainant took a voice recording during the discussion with the suspect, in a sudden situation where he had no opportunity to obtain any more evidence regarding a crime being committed against him and he had no opportunity to apply to the competent authorities. It is not possible to make a sound recording within a plan. It is against the law 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 Court of Peace, dated 30/07/2019 and with the different job number 2018/2752, is OVERFINED in accordance with Article 309 of the CMK no. 5271,
2- Pursuant 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.