As is known, there have been numerous situations where audio and video recordings are taken in secret. Therefore, legal aspect of taking audio and video recordings in secret shall be examined.
In accordance with the Article 12 of the Universal Declaration of Human Rights; “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” In also accordance with the Article 21 of the Constitution of the Republic of Turkey “The domicile of an individual shall not be violated. Unless there exists a decision duly passed by a judge in cases explicitly defined by law, and unless there exists an order of an agency authorized by law in cases where delay is deemed prejudicial, no domicile may be entered or searched, or the property therein seized.”
In this regard, anyone who has committed arbitrary interference with other’s privacy, listened or recorded his private communication is deemed to commit an illegal act unless there is a duly granted judge decision. The recording that has been taken cannot be deemed evidence or he cannot state such information as a witness; such given statement would be against the law.
In addition, Turkish Criminal Code determines that anyone who violates other’s privacy is condemned to imprisonment from six months to two years or punitive fine, such violation is executed by taking audio and video recordings, the lowest limit of imprisonment shall not be less than one year.
The person who discloses such audio or video recordings with regards to the privacy of such individual in condemned to imprisonment from one year to three years. In the event that such action is executed by way of press, the imprisonment is aggravated by half.
It should also be noted that, prosecution and trial proceedings are subject to the application of the injured party.
In brief, discrimination shall be made whether an audio or video recording is able to be evidence. If such recording is possessed by a party that does not reserve the right to be in such an activity, an infiltration to other’s privacy is executed in secret, such recording is not deemed evidence regardless of the recorder. Since the privacy of private life is violated. Such illegality is absolute illegality; such evidence is illegal regardless of the party that has executed violation. On the other hand, if the individual that has executed recordings is in such activity namely such activity is not private to him/her; the outcomes of such recordings shall be different whether the recorder is public official. In the event that the recorder is a public official, the evidence shall be illegal since the rights of the defender are violated. In the case that the recorder is a private individual, the evidence shall in principle be legal since there is no violation to defender’s rights. In other words, it is relative in the latter situation; violation is recognized in the event that recordings are possessed by a public official that has used public power.
There are similar judgments settled by the Penal Departments of the Supreme Court.
