In a dispute before the court, it is not easy for the parties to find and present evidence favourable to the proof of the claim under all circumstances. In order to prove the issues that will direct the case in their favour, the parties may often resort to obtaining new evidence by secret recording method in the absence of concrete evidence in the current situation. In this direction, secretly taken voice recordings or camera footage often raise questions about whether it is a favourable evidence to be presented to the court and different opinions are presented on this issue. Of course; every secret recording constitutes a violation of law in itself, as it constitutes the offences of violation of privacy and confidentiality of communication. However, if the parties have no choice but to resort to secret recording in order to prove their claims, can these be accepted as evidence to reveal the concrete reality? If the methods used to determine the unlawfulness are also unlawful, will the courts refuse to rely on this evidence with the philosophy that the fruit of a poisonous tree is also poisonous?
These questions have long been a subject on which the legal system has focused and sought answers. The answers that can be given are shaped according to the nature of each case in line with both the relevant articles in the legislation and case law decisions.
First of all, the procedural differences between criminal law and private law, the evidence relied upon, the nature of this evidence and the material facts sought to be reached are quite different, and these differences result in the necessity of separate evaluations in terms of private law and criminal law as to whether secret recordings are suitable as evidence.
a) Evidential Nature of Secret Records in Criminal Law:
In criminal law, reaching the material truth is much more vital than in private law, and the evidence relied upon and the way of presenting the evidence have a wider freedom compared to the private law system. However, despite this, the criminal law has not adopted the understanding that all means are permissible in order to reach the material truth and has rejected evidence that clearly constitutes a violation of the law, even if it sheds light to reach the material truth.
First of all, the regulated forms of this situation in the legislation are briefly as follows:
- Article 38/6 of the Constitution: “Evidence obtained in violation of the law cannot be accepted as evidence.”
- Article 148/3 of the Code of Criminal Procedure: “Statements obtained through prohibited procedures cannot be considered as evidence even if they are given with consent.”
- Article 206/2-a of the Code of Criminal Procedure: “Evidence shall be rejected if it was obtained in violation of the law.”
- Article 217/2 of the Code of Criminal Procedure: “The charged offence may be proved by any evidence obtained in accordance with the law.”
As can be seen, it is clearly regulated that unlawful evidence cannot be considered as evidence in criminal proceedings. So, in which cases is an evidence considered to be unlawful? This situation is examined separately according to the nature of the evidence, the way the evidence is obtained, the reason for the use of the evidence and the result it reaches.
First of all, in criminal law, especially in crimes such as sexual assault, insult, defamation, slander, threat, blackmail, bribery, which are committed based on direct communication, keeping records of the moment of the crime is accepted as an obligation of the victim of that crime to make a defence for proof. Likewise, the evaluation of these records within the scope of the confidentiality of private life will constitute a violation of fairness considering the nature of the incident and its suitability for proof. Likewise, the victim is faced with the risk of not being able to capture a provable moment for the crime committed against him or not being able to apply directly to an authorised institution. The established jurisprudence of the Court of Cassation has also linked the lawfulness of an evidence to be evaluated in criminal law to these two conditions and has evaluated the recordings taken as lawful if the victim does not have the opportunity to obtain evidence again or does not have the opportunity to get support by applying to the competent authorities. (See: Decision of the Criminal General Assembly of the Court of Cassation dated 2012/5-1270 E., 2013/248 K, 21.05.2013).
Thus, the Court of Cassation has balanced the principles of private law in such a way that they do not overshadow the establishment of the truth and the protection of rights for victims of crime.
b) Evidential Nature of Confidential Records in Private Law
According to the Code of Civil Procedure No. 6100, written or printed texts, deeds, drawings, plans, sketches, photographs, films, video or sound recordings, electronic media data and similar information carriers that are suitable to prove the facts in dispute are accepted as evidence. In private law, the concept of lawful evidence is more predominant than in criminal law. For this reason, secret recordings are not accepted as lawful evidence except in exceptional cases in certain types of cases.
Divorce cases are an exception to the rule in private law that confidential records are not accepted as evidence and constitute a criminal offence. As a matter of fact, proving the acts that cause fault between the spouses in divorce cases is difficult due to the fact that the shares of the spouses within the scope of their common private life are generally closed to the outside and lack concrete evidence. For this reason, in order to prove the alleged fault, in these cases, records taken secretly without the consent of the other party may be accepted as lawful documents. However, of course, the records to be used as evidence in these cases must also be created and used under certain conditions.
First of all, the confidential recording in a divorce case must be recorded as a communication or image that takes place in the natural flow of life. As a matter of fact, recordings which are based on fiction and plan, and which are obtained with the aim of directing, pressurising or provoking the other party with specially asked questions are not accepted in accordance with the law. For example; in the decision of the Court of Cassation General Assembly of Civil Chambers numbered 2013/4-1183 E. 2014/960 K. and dated 26.11.2014, for a recording recorded by the other Defendants with the direction of the Defendant, the evidence obtained was deemed unlawful since it was understood that the recorders tried to direct the Plaintiff to speak. Likewise, in the decision of the Civil General Assembly of the Court of Cassation numbered 2011/2-703 E. 2012/70 K. and dated 15.2.2012, the recording taken without consent was deemed to be irregular on the grounds that it was only created as a result of fiction to be used as evidence in the divorce case.
The recordings taken in the common residence are generally considered unlawful since they are taken unannounced in a way to disregard privacy. However, there are also opinions of the Court of Cassation that the recordings taken in the common residence do not constitute a violation in cases where the other spouse has justified suspicions. As a matter of fact; In the decision of the 2nd Civil Chamber of the Court of Cassation No. 2007/17220 E., 2008/13614 K. and dated 20.10.2008, it was stated that the person who suspects his spouse’s loyalty, placing a voice recorder in the common residence without the knowledge of his spouse and recording his spouse’s non-public conversations cannot be considered as a violation of the privacy of private life.
Apart from this, in labour lawsuits, in exceptional cases, the Court of Cassation has accepted the confidential recordings as lawful. In the decision of the 7th Civil Chamber of the Court of Cassation with the decision numbered 2016/6464, it was understood that the plaintiff did not actually resign and was forced to resign from the voice recording that the plaintiff received against the employer and submitted to the criminal file, and therefore, it was decided to accept the lawsuit.
It is important to note that the acceptance of secret recordings as evidence in the cases on which they are based does not make the act lawful, but only the nature of the evidence presented. Therefore, the offences that may be caused by these acts are evaluated separately in the criminal investigation or prosecution subject to complaint.
Since it is a special and sensitive issue that needs to be evaluated within the framework of the nature of each case, it is important to obtain legal advice and support before resorting to these situations, whether these records are legally appropriate to be presented as evidence in the cases they are connected to and whether they constitute a crime.
