Binding of the Recording That Obtained By Illegal Ways

Any evidence obtained in violation of the law in accordance with article 206 of the code of Criminal Procedure is invalid. 22 Of The Constitution. According to the article, the confidentiality of communication is essential. 20 of the Constitution. His article states that private life cannot be touched. But if the person is certain that the evidence will be lost in the attack against him, and it will not be possible to prove it again, the evidence that he will receive will be binding. Even if the person in question obtained evidence of the threat to him during his argument with the attacker by unlawful means, the evidential value of obtaining an audio recording of the sudden incident will arise, as there is no opportunity to contact the competent authorities at that time and the evidence will be lost. You can look at the example Supreme Court decision.

4th Criminal Division

Base Number: 2021/6097

Decision Number: 2021/10635

“Case Law Text”


October 05.11.2018 and 2018/2533 investigation,2018/1 Karsiyaka, regarding the extension of the investigation, since the DVD recording in the annex to the appeal petition must be resolved by expert ingenuity, with the acceptance of the appeal, for the decision that there is no room for prosecution, given by the Prosecutor General’s Office of Foca No. 1.Karsiyaka. After the decision of the magistrate of 29/11/2018 and 2018/2752 different work, Foca Prosecutor General’s Office’ NCA completed the deficiency mentioned and sent the file to the authority for re-decision, at the end of the review, Karsiyaka 1 on the rejection of the appeal. Magistrate Criminal Judge 30/07/2019 dated and 2018/2752 different business decision by the Ministry of Justice on the benefit of the law requested to be broken, the Supreme Court Prosecutor General’s office 22.01.2021 days and 2021/4384 request letter sent to our apartment was examined.
At Claim ;
“160 of law 5271. according to Article 170/2 of the same law, the public prosecutor must immediately begin investigating the truth of the work to decide whether there is room to open a public case as soon as he learns of a situation that gives the impression that a crime has been committed by a tip or other means. as a result of its evaluation in accordance with Article 172 of the said law, when it reaches the conclusion that the collected evidence creates sufficient doubt that the crime has been committed, it will file a public lawsuit by issuing an indictment, otherwise. according to Article 173/3 of the said law, he will decide that there is no room for prosecution, while the public prosecutor has not fulfilled the investigative task imposed on him by law 5271, and there is no investigation in accordance with the law. because the conditions in the article are not formed, the authority examining the objection may decide to accept the objection in order to enable the public prosecutor to investigate.;
According to the file scope; at the end of the investigation, there was animosity between the parties, witnesses at the scene did not confirm the claims of the suspects. decoy and decoy met to discuss the situation at the time of the incident. during the conversation, the suspect allegedly threatened the decoy with the form of “I will lay down his body”., abstract the claim, except that subsequent to the decision whether to prosecute for lack of evidence, the question for the decision of the appeal by complainant, upon the DVD attached to the petition of Appeal related to the event record should be made of the expert assessment specified with the investigation on the extension of BET Karsiyaka 1. After the decision of the magistrate Criminal Court dated 29/11/2018 and numbered 2018/2752, the expert report dated 01/07/2019 on the resolution of the DVD recording was taken and the file on the appeal was re-sent for decision by the court “ ” … abstract claims of the client and the sound recording, which is illegal evidence received within the planning, there are not enough reasons for the opening of the public case…”;
According to the expert report dated 01/07/2019 file located between the suspect during the conversation, “you ain’t here I” shaped the sentence Where are hesitant about the use against the suspect, the animosity between the complainant, the suspect and the evidence against him because of an unfair attack in order to prevent the possibility of loss to prevent the loss of audio and video recording, it is understood that the suspect is aware of existing footage from the records, as record specifies not made to the plaintiff to appeal to any word and in action, in this case, the said record cannot be considered as evidence obtained illegally, recorded secretly/without knowledge in order to produce evidence in a systematic and planned way, the said record should be considered as evidence, without considering that there is sufficient evidence and suspicion to open a public case for a crime committed on the client, there was no hit in the decision to reject the appeal in written form instead of accepting it.” is called.

Legal Evaluation:
20 Of The Constitution Of The Republic Of Turkey. and 22. in its articles, the principles of privacy of persons ‘ private lives and communication are guaranteed, 38/6. Article 8 of the European Convention on Human Rights from international texts. preserved the secrecy of private life in Article 6. the article also regulates the right to a fair trial. 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 Convention, (see warnings and precautions). 6. Shenk-Swiss decision of 12.7.1988 in terms of Article, prg. 30-48; Dr. … , Right To A Fair Trial, 3.B. 2008, p. 291; terms of Article 26.4.1985 Malone-United Kingdom and 24.4.1990 France-Kruslin/ Huoin decision et al., Prof. Dr. … , Turkey’s Human Rights Issue 2004, p. 384 as for the regulation in our domestic law, 206/2-A and 217/2 of the Criminal Procedure Code No. 5271. in its articles, it is explained that the law and unlawful evidence cannot be based on the provision.
On the other hand, 254/2 amended by Law No. 3842 of 18.11.1992 of Cmuk No. 1412, which was previously in force and regulated criminal proceedings. in its article, it is stated that” evidence obtained illegally by the investigative and prosecution bodies cannot be based on the verdict”. In the decision of the Constitutional Court of 22.6.2001 on the evidence obtained by private persons during the period of the said law, the following definitions were made: ” Cmuk 254/2. evidence prohibited in the article is evidence obtained illegally. Intent to violate the law is a violation of the accepted universal principles of law, along with all positive rules of law. It has a broader context than illegality in this sense. If there is a severe interference with constitutional rights, evidence obtained illegally by private persons must also fall within the scope of evidence bans. Because the main purpose of evidence bans is to protect basic human rights and freedoms. Defending a contrary opinion gives private individuals the opportunity to violate the fundamental rights and freedoms of individuals, which is unacceptable in a state of law. Due to the CMUK 254/2 provision, it is not possible for the courts to consider the evidence obtained by violating human rights.
The most basic rights of people whose private conversations are recorded have been violated. Because 20 Of The Constitution. in the article the privacy of private life can not be violated, 22. the article contains the rule that confidentiality of communication is essential. Once this path is opened, the law is one of the Basic Rules of the state and its existence is 2. the article of the law on the prohibitions of evidence from the principle of the ‘state of law ‘ in its article will lose all its effect. The “principle of honest transaction”, which is one of the principles in our procedural law, also does not allow the use of evidence obtained in this way. 6th European Convention On Human Rights the right to a fair/fair trial, regulated in the article, provides for the trial of persons in accordance with the rules of the rule of law. A violation of this rule will violate the fair transaction and the principle of honest transaction.”
In the face of the legal regulations and judicial case law described, only audio and video recordings recorded in accordance with the law and method of persons have the nature of evidence. However, since secretly recording a person’s interview is illegal, it is not possible to evaluate it as evidence. However Dairemizce adopted and numbered and date and the date of ycgk 21.05.2013 2012/5 2013/248 13.12.2018 2017/5 mainly based on 2018/639 as stated in the decision, against oneself in relation to a crime that is being processed, and does not have the ability to obtain more evidence on how to contact the competent authorities in cases of no sudden to record his conversations with the adoption of the law of the state, the opposing party is mandatory. Otherwise, evidence is lost and cannot be obtained again.
At the end of the investigation, there was animosity between the parties, witnesses at the scene did not confirm the claims of the suspects. decoy and suspect met to discuss the situation at the time of the incident. decoy and suspect allegedly threatened to “lay down his body” during the conversation…………. decoy…………., abstract the claim, except for the following decision upon appeal, the decision whether to prosecute for lack of evidence by complainant appeal that is related to the specified event record attached to the petition of the investigation with DVD expert assessment should be made on the extension of BET Karsiyaka 1. According to the decision of the magistrate’s Criminal Court dated 29/11/2018 and numbered 2018/2752, the expert report dated 01/07/2019 on the resolution of the DVD recording in question was edited and Karsiyaka 1. Magistrates ‘ Court date 30.07.2019, different business 2018/2752 by the state “…the complainant claims and abstract nature of evidence taken within a planning a violation of law in a public trial in addition to sound recording are not sufficient grounds for the opening of…” were dismissed on the grounds that it was understood that the objection. It is clear that during the discussion between the suspect and the suspect, he received an audio recording in a sudden developing situation in which there is no opportunity to obtain any more evidence of the crime being committed against him and there is no decency to contact the competent authorities. It is not possible to make an audio recording within the framework of planning. It is against the law to decide on rejection rather than acceptance of the appeal for the reasons described.
Conclusion and decision:
For the reasons described above;
Since the Supreme Court is seen in the place of thought in the communique organized by the Prosecutor General’s office in accordance with the request to break the law in the interests of the public,
1-Karsiyaka 1. Magistrate’s decision of 30/07/2019 and 2018/2752 different business numbered, 5271 numbered Code of Criminal Procedure 309. deterioration according to the article,
2-Code of Criminal Procedure 309. in accordance with paragraph 4-a of the article, it was unanimously decided on 24.03.2021 to complete the subsequent transactions at the site and to submit the file to the Attorney General of the Supreme Court for submission to the Supreme Ministry of Justice.

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