Although the existence of the right is necessary and sufficient in the relations between the parties, it is necessary to prove the right before the court in order to be accepted. To prove it is to succeed in convincing the judge of the existence of a case. The proof of right is the fundamental element for the outcome of the trial.

Proof and plausibility are parallel concepts in our legal system, but there is nuance between them. Proof ensures that an existing case can also be contested before the court, while credibility provides a possibility(judge’s refusal, false testimony, fair trial, etc.).) to reveal.

The most important and fundamental concept of proof law is ‘evidence’. In terms of Civil Procedure, Evidence is a means of proof that constitutes a dispute, or rather, to establish a judge’s opinion as to whether the case allegedly occurred or not. The subject of evidence is events, with exceptions. Rules of law and universal principles of law cannot be made the subject of proof.

What Can Be Used As Evidence?

Evidence is the means agreed by the legal order for proof.[1] there are some limitations on the evaluation of evidence. The jurisdiction of the judicial authority in this matter is limited in some cases by the legislator. One of these limitations is that the evidence is obtained in accordance with the law. If the evidence used to prove the existence of the right is unlawful, the main rule is that this evidence is not used by the judicial authority. Although this is the main rule, a number of exceptions have been made to this situation by judicial case law and international rules.

Because the concept of evidence is a very broad concept, in this article, the place of the evidence obtained as a result of ‘audio recording/media listening’, which is frequently raised in both criminal proceedings and divorce cases in recent days, will be mentioned in the law of proof.

What Is The Legality Of Audio Recording?

The concepts known as ambient listening and sound recording are the concepts on which criminal proceedings and civil proceedings are focused. With the recent technological developments, almost everyone now wants to listen to phone calls with the applications they buy and use them as proof of rights, and they do some kind of media listening by placing devices in the environment.

The concept of receiving audio recording, the unannounced acquisition of private data, is an extension of the right to privacy of private life guaranteed by the Constitution. The right to privacy of private life is a right that, unlike traditional rights (such as the right to life, the right to property, etc.), develops in parallel with the advances in modernization and technology. The right to privacy gives the individual the right to request that everything relating to him be kept secret, not expressed, not recorded, not shown, and not violated.

8 Of The European Convention On Human Rights. According to the article, the state has negative and positive obligations in the protection of private life. In this context, while the state has a negative obligation not to interfere with private life, it is also a positive obligation for a private person to interfere with the behavior of others that would prevent them from exercising these rights effectively.

As a rule, when viewed within the framework of fundamental rights, audio recordings taken without a person’s knowledge can not be considered as evidence against the law and can not be used as well as a crime. There are two main exceptions to this situation. The first of these is seen in divorce cases and the second is seen in criminal cases. (Is it a crime to secretly record audio in relation to criminal cases? you can read our article)

Unlawful Evidence In Divorce Proceedings

Divorce cases are a type of case that differs from the basic systematics of the law in the evaluation of evidence and is based on many rules created by practice. In practice, many people have audio recordings that prove the reasons for the end of the marriage union, but they cannot file for divorce by betting that these recordings cannot be used, and even if they do not present the evidence, they lose their rights.

However, the Supreme Court emphasized that when evaluating an evidence, it should be considered separately from the aspects of obtaining it and producing it unlawfully.:

“By the court, the CD, which is based on the verdict, was created as a result of a fiction, as recorded against the consent of the defendant woman, only to be used as evidence in a divorce case. Therefore, it is not possible for this evidence to be based on judgment.”T.C. General Assembly of the Supreme Court of law E. 2011/2-703 K. 2012/70 T. 15.2.2012

“As stated above, the improper acquisition of evidence is a separate event, and the creation of evidence is a separate event. While evidence obtained improperly can be evaluated according to the property of the concrete event, it is not possible for evidence created improperly to be accepted as evidence in any way. The plaintiff’s conversations were recorded by the other defendants with the guidance of the defendant Berrin, unaware of him, and it is understood from the audio recordings made by the expert that the recording defendants tried to talk the plaintiff and direct him. It is therefore fixed by the scope of the dossier that this evidence was obtained unlawfully.”T.C. General Assembly of the Supreme Court of law E. 2013/4-1183 K. 2014/960 T. 26.11.2014

In addition, images taken on social media tools (facebook, twitter, etc.) can be presented as evidence in divorce cases. In accordance with the idea that there will be no privacy between family members, spouses will be able to benefit from this data in divorce proceedings.

In its decision in 2007, the Supreme Court outlined the boundaries of the gizm between spouses as follows::

‘If the obtaining of an evidence has taken place through the violation of the rights of persons recognized by the Constitution, there is no hesitation when it is necessary to acknowledge that it has been obtained unlawfully. If there are reasons for compliance with the law in obtaining the evidence, then the illegality will be eliminated. Undoubtedly, according to the Constitution, everyone has the right to ask for respect for his private life and family life. The privacy of your private life and family life cannot be touched. However, in a marriage union, it is also a legal obligation for spouses to remain faithful to each other during the continuation of the marriage. [2] the private life of one of the spouses in this field is as closely related to the other spouse, who is the life partner he has met and lived with by marriage, as is his own. Therefore, in marriage, the area of legal obligations related to marriage union is not the private living area of each of the spouses, but the area of family life. In this area, the privacy and immunity of the spouses as a whole, not their individual private lives, is of importance and priority. In this respect the legal obligations area of the marriage is not untouchable for the other spouse. Therefore, suspecting his wife’s Fidelity, plaintiff-defendant, together with common spaces both live in houses, without the knowledge of the spouse by placing a voice recorder, his wife’s non-public conversations record thus, to identify behaviors incompatible with the obligation of loyalty can be a question of breach of privacy and is contrary to law where can not be considered.’’

In line with this decision, it is possible to use the audio recording obtained in accordance with the law, i.e., not created, as evidence in a divorce case.

“It is a case of people already concerning the private life of divorce along with his wife took their place and the husband of his wife photos, or letters notebook to be provided to the court as evidence, this evidence has been achieved in ways that, while not unlawful, will be assessed as evidence in court; the woman who lives in the same house, the husband is in a position to know that evidence can be seized, the husband in a closet in the bedroom or under the bed by the woman in the possession of a notebook, this space is a place where the wives live their lives in common, can not be considered a secret place for the woman; it has been accepted as daily evidence belonging to the defendant by emphasizing that no one can be deemed to have obtained evidence in a place in his house in violation of the law and that the secret areas of his private life can be proved with evidence concerning the secret areas of his private life.””T.C. General Assembly of the Supreme Court of law E. 2002/2-617 K. 2002/648 T. 25.9.2002

However, it is of course unlikely that the audio recording, which is not shown in the list of evidence and which is not consented by the other party, will be tolerated.:

“From the evidence gathered, it is understood that the plaintiff had inflicted physical violence on his wife, insulted her, expelled his wife, failed to perform union duties. The tape containing the voice recording claimed by the plaintiff to belong to the woman is not included in the list of evidence, nor is it possible for the defendant to accept this tape as evidence.”T.C. Supreme Court 2. Department of law E. 2011/20038 K. 2012/28733 T. 30.11.2012

Supreme Court 2. In the following decision of the legal department, even the conversations recorded by the husband with the spy program from his wife’s mobile phone were accepted as legal evidence and the court’s decision was upheld. The member Judge’s vote against on the following grounds is noteworthy:

“A cd of audio recordings of the defendant-plaintiff (woman) presented to the court as evidence by the plaintiff-defendant (husband) in the divorce case, which is being seen by merging between the parties.it has been argued that the ‘ S were obtained unlawfully by violating the “privacy of the private life” of the defendant-plaintiff and therefore cannot be used as evidence; it has been accepted that the evidence obtained in this way can be evaluated by the court and the majority.”T.C. Supreme Court 2. Department of law E. 2012/21108 K. 2013/21067 T. 17.9.2013

But The Supreme Court 2. The legal department adopted the following ruling which amended its opinion above:

“Although the court has decided to accept both divorce cases by accepting the defendant-counter-claimant woman as being more flawed, the trial and the evidence collected; it is understood that the defendant-Counter-Defendant man’s actions in the case of the defendant-Counter-Defendant woman are in a form of disbelief, whereas the plaintiff-Counter-Defendant man has committed more than one act of violence against his wife, his brother has committed violence against the defendant-Counter-Defendant woman, and thus has remained silent to the intervention of his family.”T.C.Supreme Court 2. Legal Department basis number: 2015/26667 decision number: 2017/4686 decision date: 24.04.2017

“Although the voice recording presented by the plaintiff-Counter-Defendant woman by the court has been taken into account in determining the defect, it is not possible to take the basis of the verdict due to the unlawful acquisition of the voice recording.”Supreme Court 2. Legal Department basis number: 2016/34 decision number: 2017/6403 decision date: 29.05.2017

“from the trial and the evidence collected, the plaintiff-defendant woman is charged as a defect by the court for the defendant’s wife, ” God makes it out as a disease….the words “do you know from” are understood to have been included in the CD resolution record for the audio recording created by the man. This unlawful evidence cannot be taken into account in the determination of defects and cannot be attributed to the woman as a defect.”Supreme Court 2. Legal Department basis number: 2015/21364 decision number: 2016/15003 decision date: 21.11.2016

“The defendant’s actions against his wife, wife’s mother and brother-in-law, which were uploaded by the court to the woman, are included in the CD settlement record regarding the audio recording created by the man. This unlawful evidence cannot be considered.”Supreme Court 2. Legal Department basis number: 2015/19097 decision number: 2016/12155 decision date: 22.06.2016

Can The Content Of The Message Be Identified In A Divorce Case?

‘Whether the content of the message can be determined’ comes at the beginning of the questions heard as party representatives during the divorce proceedings. 135 Of The Code Of Criminal Procedure. The article sets out the conditions under which the content of the message can be recorded. In accordance with this article, there must be strong suspicion that a crime has been committed in a criminal investigation or prosecution before the content of the message can be identified. The presence of strong suspicion alone is not enough. In addition, the decision of the Competent Authority is required. However, it is possible to determine the content of the message in these conditions.

In divorce cases, the determination of the content of the message cannot be asked by the Family Court. The Family Court will only be able to find out the time, number and day the message was sent with the information it will ask of the relevant operator. However, if the message sent by the parties is still in the structure of their phones, the content of the message may be removed from the existing phone.

Admission Of Secretly Obtained Audio Recording As Evidence At Criminal Trial

The second exception is in criminal law, where the audio recording taken without the knowledge of the other party is considered as evidence. This exceptional case was also established by the case law of the Supreme Court.

In the decision of the General Board of the Supreme Criminal Court, “in relation to a crime against oneself that is being processed, a more sudden and the authorities to obtain evidence in situations without the possibility the possibility exists of applying to the opposing party to record his conversations with the adoption of the law of the state is mandatory. Otherwise the evidence will be lost and it will never be obtained again,” he said, adding that he had made the assessment and underlined an exceptional arrangement.

With the applications of the Supreme Court, exceptions were introduced to the concept of evidence against the law in both criminal proceedings and legal proceedings, and separate cases were created.