01 Dec THE PRESENCE OF IMAGES AND AUDIO TAPES AS EVIDENCE IN CRIMINAL PROCEEDINGS
One of the most discussed and confusing pieces of evidence in criminal proceedings is tapes containing images or audio recordings. Many times, these tapes, by whom, where
and regardless of how it was obtained, it is recognized as illegal and is not allowed to be substituted. However, audio and video recordings, without registration, unconditional, unlawful evidence
acceptance as such is not possible. First of all, it should be noted that these records are documentary evidence and represent the event indirectly many times. However, as with the tapes recording the moment of action, there is the possibility of direct representation, even those that are indirect representation,
it can be a valuable evidence. Tapes containing images and audio recordings must be considered separately in many ways when examining whether there is evidence in accordance with the law. These include whether the registration is confidential, whether it is obtained by public officials, whether the place is a public space,
these are issues that have differences, such as whether the recorded activity is publicly available. It is useful to start the review with the possibility that the person performing the registration is a private person: If the private person recording and the interlocutor are unaware of the registration, the important issue is whether the person performing the registration is involved in the recorded activity. If a private person records a moment and an activity in which he is also present, it is impossible to accept that this evidence is unlawful, even if the interlocutor is unaware of the recording. For example, a private person is talking to the interlocutor face-to-face or by phone, and he records this conversation unannounced. Here, the legality of the evidence should be examined from two separate points of view: the first is whether this act of registration constitutes a crime in person. If
registration is required for any activity in the private sphere of other persons, or again in the private sphere of third parties, even if it is in the public sphere.2
if it relates to activities of a (and confidential) nature, personally register
his action is unlawful
. Because the confidentiality of private life and communication is protected not only against public officials, but also against everyone. Article 12 of the Universal Declaration of Human Rights. according to the article; “No one’s private life, family, housing immunity or freedom of correspondence may be arbitrarily interfered with; no one may be subjected to bad behavior against their honor and reputation. Everyone has the right to be protected by law from this interference and bad behavior
there are”. 20 of the Constitution. according to the article; “Everyone has the right to demand respect for his private life and family life. The privacy of private life and family life cannot be touched”. The provision contained in this article, “Exceptions required by judicial investigation and prosecution are reserved”, has been repealed by Law No. 4709. Likewise, Of The Constitution
21. article 22 protected the inviolability of housing. in its article“ “Everyone has the right to freedom of communication. The provision ”Confidentiality of communication is essential” has been included.
As it can be seen, the universal level of development reached by humanity and the common mind that appears at this level have placed the individual’s private life and communication under absolute protection. This protection is provided only in the presence of a strong suspicion of a crime, for the purpose of restoring social peace and tranquility disturbed by the crime, if there is no other way to obtain evidence, and by the judge
it can be suspended provided that a decision has been made. The common mind aims to ”keep the possibility of social development open“ in order to “realize individual freedoms at the maximum level and,
this is how he has established the balance between the goals of ”decontamination” and “protection”. Then, the person who sneaks into the private life of any person, listens to or records their private communication, whoever it is
for example, if it is not based on a judge’s decision issued in accordance with the law, it commits a crime. The record made by this person cannot be evidence, nor can he declare the information he has thus obtained as a witness; the statement he has made in this regard is also absolutely against the law. It is important to note that the violation of the law here is absolute. In turn, as in our example, if the registrar is involved in this activity, the registration he makes also includes his field of activity. In other words, a person who records his own location, albeit secretly, on a camera, records a phone call he has made, has not sneaked into the private space of a third party. The activity of the third party is
it is not hidden against. Of course, the disclosure of this record to third parties will not be in accordance with the law. However, the fact that we are studying leads to a violation of the right to make this record public
it is not whether he will open it or not, but whether there will be evidence in a criminal trial. The balance between the purpose of ”deciphering the material truth“ and the purpose of ”protecting the privacy of the private space” is established here
the discovery of material truth will be spoiled for its benefit. Otherwise, it will also not be possible to apply for the testimony of the registrar in relation to an incident in his field of activity.
However, the acceptance of such an outcome is contrary not only to the law, but also to reason.
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