One of the most discussed and confusing evidences in the trial of persecution,
cassettes containing video or audio recordings. Many times, these tapes, by whom, where
and regardless of how it was obtained, it is considered unlawful and cannot be substituted.
are not allowed. However, the unconditional, unlawful evidence of audio and video recordings
cannot be accepted as
First of all, it should be noted that these records are in the nature of documentary evidence1
and the thing is
they represent indirectly. However, as in the tapes recording the moment of action,
As well as having the opportunity to represent directly, even those with indirect representation,
can provide valuable evidence.
Whether the tapes containing video and audio recordings are legal evidence.
It has to be considered separately from many aspects. These are whether the recording is confidential or not.
whether it was obtained by public officials, whether the space is a public space,
matters that differ, such as whether the recorded activity is publicly available.
It is useful to begin the review with the possibility that the registrant is a private person.
If the private person registering and the addressee are unaware of the registration, the important issue is the registration.
whether the person performing the activity was involved in the recorded activity. If you are a private person
If he is recording a moment and activity in which he is also involved, the addressee is unaware of the recording.
Even if it is, it is not possible to accept that this evidence is against the law. For example, private
the person is talking to the interlocutor face to face or on the phone and he records this conversation without knowing it.
takes. Here, the legality of the evidence should be examined from two different perspectives:
The first of these is whether this recording act itself constitutes a crime. if
registration, any activity in the private areas of other parties or any third party,
even in the public domain, private2
the registration itself, if it relates to activities of a (and confidential) nature.
the act is unlawful
3
. Because the privacy of private life and communication is only for public officials.
protected against everyone. Article 12 of the Universal Declaration of Human Rights
in accordance with; “No one shall have the right to privacy, family, or inviolability of correspondence.
his freedom may not be arbitrarily interfered with; misconduct against anyone’s honor and reputation
cannot be found. Everyone has the right to be protected by the law against this interference and abuse.
has”. Likewise, in accordance with Article 20 of the Constitution; “Everyone has access to his private and family life.
has the right to demand respect. Privacy of private and family life
untouchable”. In this article, “the requirements of judicial investigation and prosecution
exceptions are reserved” provision has been repealed by Law No. 4709. Likewise, the Constitution
Article 21 protects the immunity of residence, and Article 22 states that “Everyone,
has the freedom of communication. Confidentiality of communication is essential”.
As can be seen, the universal level of development that humanity has reached and at this level
The emerging common mind has taken the private life and communication of the individual under absolute protection. This
protection, only if there is a strong suspicion of crime, social peace and security disturbed by crime.
for the purpose of restoring the peace, if there is no other way to obtain evidence, and by the judge
may be suspended, provided that a decision has been made. Common sense, “social development
With the aim of keeping the opportunity open, “individual freedoms are realized at the maximum
This is how he established the balance between the purpose of “protecting the So, any
2nd
Whoever enters the private life of the person, listens to or records his private communication, whoever
If it is not based on a judge’s decision given in accordance with the law, it is committing a crime. This
The recording made by the person cannot be evidence, and he can also declare the information obtained in this way as a witness.
cannot; His statement in this regard is also absolutely unlawful. Let me emphasize that,
The illegality here is absolute.
On the other hand, as in our example, the registrant takes part in that activity.
If he is in the business, the record he makes includes his own field of activity. So its own
the person who recorded the place on the camera, albeit secretly, and recorded his own phone call,
does not sneak into the private space of the third party. Third party activity, registrant
is not confidential. Of course, the disclosure of this recording to third parties is a legal qualification.
will not carry. However, the case we examined is that the disclosure of this recording to the public leads to a violation of rights.
It is not whether he will open it, but whether there will be evidence in a criminal trial. “Material truth
The balance between the purpose of “revealing the privacy of private space” and the purpose of “protecting the privacy of private space”
will be distorted in favor of the discovery of material truth. Otherwise, the registrant’s own
It will not be possible to apply to his testimony regarding an event in his field of activity.
However, the acceptance of such a result is not only against the law but also against reason.
