12. Criminal Department
Part Number: 2017/150
Decision Number: 2017/6231
“text of jurisprudence”
Court of First Instance: Criminal Court of First Instance
Crime : Violation of the privacy of private life
Istanbul Anadolu 2. The decision of the Criminal Court of First Instance dated 26.01.2016, No. 2015/503-2016/33 to resist was appealed by the participant and 36 of the Law No. 6763. article 307 of the CMK, which is different from the article. § 3. in accordance with paragraph 1, the file was sent to our Department for examination of the resistance provision by the General Assembly of the Supreme Court of Criminal Justice; it was considered necessary by re-examination:
In the examined file, the defendant’s name is TCK 134/2. as a result of the trial, the defense of the accused, the statement of the participant, the document in the file and the entire file are covered by the article “…for the crime of violating the privacy of private life defined in the article; who’s attending with friends for a while the defendant was taken the exact date of the photo available when you install Facebook on the website cannot be determined exactly so so that that you have installed without consent after he left join with a doubt of the defendant’s benefit cannot be identified in accordance with the principle laid acquittal from guilt in the direction of the provision was established in the following manner…” format, the grounds for acquittal on the basis of dated 13.03.2014, 2013/143 based on Decision No. 2014/133 by participating in the provision upon appeal, the court of Appeals 12. According to the declaration of the Criminal Department dated 11.05.2015, 2015/35 basis, decision 2015/7819;
“…A friend of the defendant and the attendee’s time, then the end of the friendship, the defendant and the defendant together with the involved during participating taken together, the facebook page and put photos of their own, their friendship after the end of the attendee’s photos, even after the removal of the defendant demanded from the defendant in question doesn’t remove the photos in the event,
The file from the scope of the attendee relations with the defendant and together they continued until the month of September of 2012, during the period they are taken, the date when the photos was put on Facebook exactly be determined, although it is put on by the defendant the parties during their time together at that time and the attendee’s own Facebook page that are not in dispute when the attendee’s statement of the defendant in the month of September I wanted to leave himself, but the defendant to continue his association of joining in the month of October 2012 that the defendant allegedly threatened her, facebook facebook December 2012, the defendant also filed a complaint on 12/12/2012, alleging that the photos mentioned were still shared on the defendant’s facebook page, and as stated in the indictment, the photos were found on the defendant’s facebook page as of the date of the complaint, considering that the defendant removed the photos mentioned at the end of December 2012, in his statement to the prosecutor’s office, before the date of the complaint, the participant complained to the defendant about the crime of threatening the defendant, and in the message section sent by the defendant to the participant, “I am in these pictures, whether I put it on my face or not, I don’t answer to anyone, and you know it like that.” taking into account the message that the participant should accept that the defendant wants to leave in September, and although the photos subject to the bet are shared on the defendant’s own page with the consent of the participant, the consent of the participant cannot be mentioned after the participant requests to remove the photos, and the defendant should remove the photos, but does not remove, the history of Facebook on the website of the photos is not a matter of being available, the important matters of the complaint as of the date of the consent of the participant, whether it being understood that the photos could not be found on Facebook and continue the defendant up to the act of joining together with posting to Facebook a photo taken of the Penal Code 134/2-1.without taking into account that he should be punished in accordance with the sentence, ‘the date when the defendant uploaded the photo taken with the participant to the Internet site called facebook cannot be fully determined, in other words, after parting with the participant, an acquittal decision will be made on the grounds that it cannot be fully determined whether he uploaded it without his consent or not, and on the grounds that it does not fall within the scope of the file,
Also according to the acceptance and application;
In the brief decision that constitutes the basis of the judgment and in the provision part of the reasoned decision, the acquittal verdict is established against the accused, provided that the applicable law and article 232/6 of the CMK is not shown. it is understood that the acquittal decision dated 26.01.2016 was established by stating that it was violated based on the reasons and that the previous decision was resisted by the court.
26.11.2013 the General Board of the Supreme Criminal Court, which is dated based on 2013/50, according to the decision of the practice and continuity 2013/525 gained, the decision was made to resist even though formally; in accordance with the decision-making process to discuss the issues that should be discussed in the judgment of reversal, in the aftermath of the destruction research to investigate new evidence based on data collected, the first decision that has been untested and are not included in a provision of the apartment by establishing new and different reasons for the decision; not in the nature of resistance in essence, but as a result of repeating action which was given a new provision to disrupt it. If a decision of this nature is appealed, the examination should be carried out by the relevant department of the Supreme Court.
Although the previous practice was adopted exactly as a result of the trial conducted by the local court after the announcement of the deterioration of our apartment; “…as a result of the examination and evaluation conducted by our court on the deterioration; breaking up is not in the place where the pictures will be accepted between the parties related to the private life relationship together where the plaintiff from the defendant’s Facebook account or are in the process of shared expressly consent to it, with the defendant removed from the page images from the relationship at any time from the failure to accumulate the elements of the crime and substance TPC 134/2 from the direction related images of where they were betting the article also unlawful disclosure, however, in the event we cannot talk about any disclosure law charges the defendant’s pictures when it starts, what is intended to be protected in the law is to prevent the unlawful disclosure of private images or sounds of people, pictures subject to crime are disclosed in accordance with the law from the beginning to a certain stage, at the point where the action will not turn into a crime as soon as one of the parties to the picture, that is, the client, has obtained their consent, at this point, our court considered that the decision was in place and ruled on the acquittal of the defendant as follows…” Due to the fact that the new and different grounds were established in accordance with Article 223/2-a of the CMK, the final application of the local court was not a decision to resist, but because it is a new provision, the decision to resist was accepted as an active compliance and the duty to review the decision on appeal belonged to our Department by determining that the decision to resist belongs to our Department in the review:
According to the judgment held, the evidence collected and shown at the place of decision, the opinion and discretion of the court formed in accordance with the results of the prosecution, the scope of the file examined, the rejection of other appeals of the participant, but;
The defendant, the victim himself in a frame and kissed her on the cheek, and wrapped himself in them both side by side posing on others in daily attire taken by the photographs, within the knowledge of the victim facebook account after you publish the photos in question, the victim requested to be removed by a victim, and separate from, although it continues to publish, in the event that;
The relationship between the victim and the defendant subject to the claim of the existence of showing the size of the photos, in accordance with the consent of the victim before being published on the social networking site Facebook called in response to these photographs related to the field of the private life of the victim and the images which violate the privacy of personal life are not accepted as since the defendant, the victim of the personal data in the quality of the photos, in a way that goes against the consent of the victim confirmed due to the action of continuing to publish in the form of the Penal Code that finds 136/1. a decision to acquit the accused in accordance with Article 223/2-a of the CMK on legal and non-sufficient written grounds, without taking into account that a decision should be made to convict him of giving or seizing the data in the article in violation of the law,
It is contrary to the law, and since the appeals of the participant are considered to be in place as of this date, the provision is therefore in accordance with Article 8 of Law No. 5320. article 321 of the CMUK No. 1412, which is still being implemented in accordance with its article. it was unanimously decided on 13.09.2017 to violate the article in violation of the will in accordance with the article.