{"id":2805,"date":"2022-01-26T11:23:07","date_gmt":"2022-01-26T08:23:07","guid":{"rendered":"https:\/\/www.ozkokhukuk.com\/?p=2805"},"modified":"2024-04-16T17:15:59","modified_gmt":"2024-04-16T14:15:59","slug":"bosanma-davalarinda-hukuka-aykiri-delil","status":"publish","type":"post","link":"https:\/\/www.ozkokhukuk.com\/en\/bosanma-davalarinda-hukuka-aykiri-delil\/","title":{"rendered":"Unlawful Evidence in Divorce Cases"},"content":{"rendered":"TO CONTACT NOW:\u00a00 541 485 92 48<\/a><\/strong><\/p>\n

ILLEGAL EVIDENCE IN DIVORCE CASES<\/h2>\n

\"\"<\/strong><\/h3>\n

<\/h3>\n

What are the unlawful evidences in criminal proceedings?<\/h3>\n

Before the Code of Civil Procedure came into force in 2011, there was no regulation in the HUMK regarding unlawful evidence. In Articles 36 and 38 of the Constitution, it was regulated that unlawful evidence could not be brought to trial.<\/p>\n

Freedom of claim Article 36<\/strong> \u2013 Everyone has the right to a fair trial by claiming and defending before the judicial authorities by making use of legitimate means and means.16 No court can avoid hearing the case within its duty and jurisdiction.<\/p>\n

Principles on crimes and punishments Article 38-<\/em><\/strong> (Additional paragraph: 3\/10\/2001-4709\/15 art.) Findings obtained illegally cannot be accepted as evidence.<\/p>\n

What are the evidences that the Court of Cassation finds to be lawful or unconstitutional in divorce cases?<\/h4>\n

According to Article 13 of the Constitution of the Republic of Turkey, fundamental rights and freedoms can only be limited by law. In the Code of Criminal Procedure, it is regulated in which cases a wiretapping decision can be made, for which crimes freedom of communication can be interfered with, and this intervention can only be made with a judge’s decision. There is no such regulation in legal proceedings. Demands for the detection of communication are an intervention to both the freedom of communication and private life of individuals. Although it seems very simple to find out what time a person is talking to and with whom, it means violating the freedom of communication regulated in the Constitution. The issue discussed here is where the freedoms of individuals begin and end in divorce cases. According to one view; In divorce cases, individuals do not have individual rights, but the family has rights. According to another view, there is no difference between any two outsiders and spouses in terms of limiting the rights and freedoms set forth in the Constitution.<\/p>\n

According to the Court of Cassation, marriage has two purposes: sociability, sexuality and reproduction. In 2014, the Penal Code was amended and forced sexual intercourse between spouses was accepted as rape. The basis here is the protection of the bodily integrity of one of the spouses, which is regulated in the Constitution. Such a change by the legislator can be interpreted as he accepts that the basic rights of the individual regulated in the Constitution are more important than family unity. One of the spouses abstaining from having sexual intercourse with the other is a clear reason for divorce according to the Supreme Court’s jurisprudence.<\/p>\n

For example; When the spouses were going to sleep after eating their dinner and reading their books, one of the spouses changed their clothes and took the car key with them. When the other wife asked where he was going, he said that he would go out and wander around a bit. Here, the question arises whether the spouse staying at home can lock the door on the other spouse to prevent them from going out. According to one view; The spouse who stays at home cannot restrict the freedom of travel of his spouse who wants to go out. As soon as the spouse staying at home locks the door on the spouse who goes out, he commits the crime of restricting freedom in the sense of criminal law. However, the spouse who goes out at night and comes home the next day causes divorce with his faulty behavior, this behavior is considered as a trust-shaking behavior.<\/p>\n

It is a crime in our law for a person to record the voice of another without permission. In our Penal Code, if the crime of theft is committed against certain relatives, this crime is not punished. However, there is no such exception for spouses in Article 132 of the Turkish Penal Code, which regulates the crime of violating the confidentiality of communication. This shows us that the will of the legislator is that the spouses should not violate the confidentiality of each other’s communications.<\/p>\n

The person who is obliged to prove his claim in civil proceedings has to prove his claim by legal means. Until the HMK came into force, the concept of unlawful evidence in civil proceedings could not find a place in the laws, but it was discussed very little in the case-law of the Supreme Court. Unlawful evidence is described as poisonous tree by the masters of procedure. In other words, if an evidence was obtained illegally, the evidence obtained on the basis of it is also illegal, and the fruit of the poisonous tree is poisonous.<\/p>\n

The Supreme Court has recently accepted the concept of unlawful evidence. With the entry into force of the Code of Civil Procedure, the concept of unlawful evidence has taken its place in the law. In Article 189\/2 of the Law, “The evidence obtained unlawfully cannot be taken into account by the court.” formatted. In the justification of the law, the legal framework of the right of proof has been drawn, and the principle that any evidence that can be put forward in a lawsuit must have been obtained through legal means. According to the regulation set forth in the paragraph, if the court takes into account the way of obtaining the evidence presented by the parties ex officio and if it is determined that the evidence has been obtained unlawfully by any means, by regulating that the evidence that is understood to have been obtained unlawfully, cannot be taken as a basis in the proof of a fact by the court. Even if an objection is not brought forward by the other party, the court has decided that it is not permissible and the principle of not being evaluated within the scope of the file has been adopted. While it is regulated in the Constitution that findings obtained illegally cannot be used as evidence, it is stated in this law that the evidence obtained illegally will not be taken into account by the court. That is, it is sufficient that the evidence is not only against the law but also against the law. Even if unlawful evidence has been requested to be collected, the judge should not collect this evidence requested by the party, stating that the collection of this evidence is against the law.<\/p>\n

Unlawful evidence is frequently encountered in civil proceedings in divorce cases. With the development of technology, the evidence in criminal and civil proceedings has diversified. Many types of evidence have been added to the classical evidence such as deed, witness, expert examination, and oath. Since freedom of evidence is accepted in our system, there is no possibility that these evidences, which are not written in the law, will not be accepted by the court.<\/p>\n

The means of proof to be used by the parties in the civil proceedings must be obtained in accordance with the law and in accordance with the law. An individual’s body, private life, freedom of communication and home cannot be touched. If the evidence obtained illegally is presented to the court, it cannot be taken into account and evaluated by the court. In this context, the collection of unlawful evidence cannot be requested from the court.<\/p>\n

The objection of unlawful evidence to the files can be in two ways. The parties themselves can present the evidence to the court. E.g; audio recording of the other\"\" party. The parties may request the court to collect it. For example, the parties ask the court to determine the communication, the country’s entry and exit records of the other party, and the hotel records. It collects the requested evidence by writing a warrant to the relevant institutions in the court. It is not possible for the court to control the submission of evidence by the parties. The parties may present the evidence they have collected to the court in the petition or in the evidence lists. The judge does not have a control obligation regarding the presentation, but if the evidence submitted to the file is in compliance with the law, if it has not been collected in accordance with the law, he should not take this evidence into account when making his decision in the trial.<\/p>\n

One of the main problems is the collection of unlawful evidence through the judge. The most striking example of these is the demand for the detection of communication. In almost all divorce cases, the parties want mutual communication to be determined. According to the 2nd Law Department of the Supreme Court of Appeals, frequent meetings between a spouse and a member of the opposite sex at inappropriate times are considered trust-shaking behavior. The parties make a request to the courts to determine who they talked to each other retrospectively and for how long. Most of the courts also request the determination of the communication to be sent by writing a warrant to the relevant GSM operator without doing any research on the phone numbers reported by the parties. Occasionally, there are cases where the courts even accept the request for the detection of the communication of third parties, which the parties have stated in the evidence lists, and collect this evidence from time to time. There is no decision of the 2nd Law Department of the Court of Cassation that describes the detection of the communication as unlawful evidence.<\/p>\n

It is also seen that the determination of the communication of the phones of third parties outside the case is also requested. This is absolutely not possible. The courts should reject this request, and even if the court writes a warrant in this direction, GSM operators should not fulfill the requirements of these warrants. From time to time, it is also asked from the courts whether the other spouse stayed at the hotel with the person thought to be together. Such practices are completely unlawful for third parties. Even if the parties make such a request about third parties, it should not be accepted by the court by stating that these evidences will be against the law.<\/p>\n

In the Diary Decision of the General Assembly of Law in 2002, the husband presented his wife’s diary to the court as evidence in a divorce case, and it was discussed in the General Assembly of Law whether this evidence would be accepted as unlawful evidence. When the concrete event was evaluated, it was seen that the woman had a relationship with her brother-in-law and wrote this relationship in her diary, and the husband found the diary at home and presented it to the court as evidence. The woman did not claim that the diary or the writing did not belong to her, but she claimed that this evidence was against the law. As a result of the discussion, the General Assembly concluded that the party bringing the evidence did not act against the law in order to obtain this evidence, since the diary was found in the common house where the parties live together and the husband found the diary in an easily available cupboard. It is understood from the decision of the General Assembly that this evidence would be unlawful if the woman lived in another house during the continuation of the divorce case, and if the husband had entered the house without the consent of the woman and had entered the house, rummaging through the cabinets and drawers, and obtained this evidence.<\/p>\n

What can lead to the fact that the concept of illegal evidence is not accepted in private law? The concept of unlawful evidence in criminal proceedings is mostly discussed in the statements taken by torture. Evidence obtained through torture is considered to be unlawful, and if these evidences are accepted as lawful, torture will be paved. In terms of civil proceedings, for example, it becomes possible for the husband to put a gun to his wife’s head and have a confession written in the divorce case, and this can be used as evidence in the trial. It is a big question mark how the spouses will prove it, especially in the case of adultery. However, considering that unlawful evidence cannot be used even in murder, which is one of the most serious crimes in criminal proceedings, it should be accepted that unlawful evidence cannot be used in divorce proceedings, no matter what.<\/p>\n

Incidentally obtained evidence is considered partially legal in terms of the 2nd Law Department of the Court of Cassation. For example, recording the faulty behavior of one of the spouses with a camera placed in the house for the safety of the children can be given as an example to the evidence obtained by chance. The reason for using these evidences is that there is no unlawful act in order to obtain the evidence.<\/p>\n

What should be done to prevent the use of unlawful evidence?<\/h4>\n

In fact, the presence of unlawful evidence in the file also violates the privacy of private life. Here, arrangements can be made to keep the evidence in the file or to remove it. The predominant view in the doctrine is that unlawful evidence should also be kept in the file. There are drawbacks for the judge to remove the evidence that he deems unlawful from the file and return it to the parties. Namely; That this evidence is unlawful may be at the discretion of the judge of the first instance court, this evidence may also need to be audited, and in this case, the upper court will not be able to determine whether it is unlawful without seeing that evidence. Therefore, unlawful evidence should be kept in the file until the decision is finalized, but this evidence should not be taken into account when making a decision. The disadvantage of keeping it in the file can be eliminated by keeping it in the court safe. If an unlawful evidence against our clients has been submitted to the file, it should be requested from the court to keep it in the court safe, even if the court has not done it ex officio. If a decision is made, these evidences are added to the file in a special envelope and sent to the higher court.<\/p>\n

In a 2015 decision of the 2nd Civil Chamber of the Supreme Court of Appeals, it is understood that the CD of the audio recordings presented by the plaintiff man was obtained in an unlawful way by violating the privacy of the woman’s private life. Evidence contrary to law cannot be taken as the basis of a judgment. There was no evidence of any other faulty behavior of the woman that required divorce. In the face of this situation, it was said that it is not correct to accept the divorce case of the man who is completely defective in the events that caused the marriage union to be shaken to the foundation, but to accept it in written form. The most frequently presented unlawful evidence in divorce proceedings are audio recordings and video recordings. It is a crime to record someone else’s voice and image without permission.<\/p>\n

In a 2013 decision of the 2nd Law Department of the Supreme Court, the husband installed a spy program on his wife’s phone, recorded her conversations and messages, and presented them to the court as evidence. In 2013, this evidence was found to be lawful by the 2nd Law Office, but the new practices of the office differ.<\/p>\n

In a 2010 decision of the 2nd Law Department of the Supreme Court of Appeals, it was determined that talking to another man working at the same workplace, sending a message and getting into this person’s car does not constitute adultery, and adultery has not been confirmed. Here, unlawful evidence should have been discussed, since the situation of speaking to another man on the phone was probably determined by the detection of the communication. However, the Court of Cassation did not argue for unlawful or unlawful evidence in this decision.<\/p>\n

In the 2011 decision of the 2nd Civil Chamber of the Supreme Court of Appeals, it was stated that this action, which made the marriage union unbearable for the husband, cannot be considered as leading a dishonorable life, since it was understood from the collected evidence and the testimonies of the witnesses that the woman talked and texted with another man on a mobile phone. Here, too, the conversation on the mobile phone was probably proven through the detection of the communication, but there was no discussion of unlawful evidence.<\/p>\n

In a decision of the 2nd Law Department of the Court of Cassation dated 2019, it was seen that the cases of insults and threats against the defendant man were based on the statements of the witnesses that there was a voice recording created by recording the phone conversation between the parties. Evidence cannot be taken into account by the court in proving a fact. Since it is against the law to record a conversation between the parties without the knowledge of the claimant woman and the man, the statements of the witnesses that this audio recording exists cannot be trusted.<\/p>\n

In a 2020 decision of the 2nd Civil Chamber of the Supreme Court of Appeals, the audio recordings, of which it is not certain how and under which conditions they were obtained, were evaluated as unlawful evidence and the issues such as insults and expulsions in the recordings cannot be taken as a basis for the decision, although the defect was corrected by the BAM in the provision part of the decision. It has been said that the substantive rejection of the appeal against the fault of the parties is not correct. What needs to be understood here is that the party presenting the audio recording should also clarify how and in what way this evidence was obtained, and prove that there was no unlawful act in obtaining the evidence.<\/p>\n

Is evidence in the form of a CD containing a sound recording illegal?<\/h4>\n

In another decision of the 2nd Law Chamber of the Supreme Court of Appeals dated 2020, the CD submitted by the plaintiff\/defendant woman as evidence to the file by the court was charged as a fault, on the basis of the judgment, the fact that she acted unfaithfully to the defendant\/plaintiff man, the privacy of the private life of the man was violated. Since it was understood that it was obtained in an unlawful way by Due to the fact that the CD is unlawful evidence, it has been said that the fact that the defendant\/k.plaintiff’s act contrary to the obligation of loyalty is loaded as a fault was not considered correct and required breaking it.<\/p>\n

In another decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 2020, BAM examined the objection, and it is clear that the audio recordings of the phone conversations of the woman with her mother are in the nature of unlawful evidence and cannot be taken as a basis for the decision. In this case, in the events that caused the marital union to be shaken, the man was completely at fault and it could not be proven that the woman was at fault. The fact that the recording was taken without the consent of the woman, that she did not accept the relevant conversation recordings, and that it was clearly unlawful evidence, was not evaluated as evidence.<\/p>\n

In a 2019 decision of the 2nd Civil Chamber of the Court of Cassation, it was stated that the photographs used in the proof of the act contrary to the obligation of loyalty imposed on the defendant woman and taken by the detective cannot be taken as a basis in determining the fault since they are unlawful evidence.<\/p>\n

In a 2018 decision of the 2nd Law Department of the Supreme Court of Appeals, although it was accepted that the woman acted contrary to the obligation of loyalty, it was said that the audio recordings and CD contents made by the man without the knowledge of the people in the same environment are unlawful evidence and cannot be taken into account in determining the fault.<\/p>\n

In a 2018 decision of the 2nd Civil Chamber of the Court of Cassation, it was stated that the audio recordings presented by the plaintiff woman could not be taken as a basis for the judgment, since it was understood that the audio recordings were obtained unlawfully by violating the private life of the man.<\/p>\n

In another decision of the Court of Cassation, the fact that the defendant\/plaintiff man threatens his wife is based on the voice recording created by recording the conversation of the plaintiff\/defendant woman between the parties without the man’s knowledge, but this recording is unlawful evidence and It has been stated that it cannot be used as a basis for the determination of fault.<\/p>\n

\"\"Is the evidence obtained through the spy program illegal?
\n<\/strong><\/h4>\n

In a decision of the Court of Cassation about the spy program, it is understood that the recordings of the interviews obtained with the program that the plaintiff\/defendant man downloaded to his wife’s phone are unlawful evidence. In the face of this situation, it was said that since this evidence is unlawful, it cannot be taken into account in determining the fault and cannot be attributed to the woman as a fault.<\/p>\n

According to the Supreme Court, the placement of a tracking device in the woman’s car by the man and the installation of spyware are unlawful evidence and cannot be taken as a basis for the judgment.<\/p>\n

In the 2019 decision of the 4th Legal Chamber of the Supreme Court of Appeals, in a meeting between two people in Ankara, one of the parties who made this meeting cursed the third person. The conversations between these two people were also recorded and then broadcast on Youtube. When this interview went viral on the internet, the third person, who was cursed at him, learned that he was cursed and filed a lawsuit for compensation, and in the case he claimed that he had not acted unlawfully in order to obtain this evidence. The Chamber accepted that this evidence was also unlawful, and stated that if the plaintiff did not act unlawfully, it could not be taken as a basis for the judgment, since the first way the evidence was obtained was unlawful.<\/p>\n

In a decision of the 3rd Civil Chamber of the Supreme Court of Appeals, the case is about the abolition of alimony. Claiming that 1,000,00 TL monthly alimony was awarded, the defendant lived as if she was married to a person named Erkan, and the pictures and videos published by the defendant on the internet revealed the actual marriage, and it was demanded that the alimony awarded in favor of the defendant be lifted. With the acceptance of the main case, the court decided to abolish the alimony granted in favor of the defendant, on the grounds that the conditions in Article 176\/3 of the TMK, which proved that the defendant, who is the alimony creditor, lived together as if he was actually married without marriage, even for a short time, with CD records and the witness statements heard by the court. given. In this decision, which came before the 3rd Law Office, it was said that it should be determined that the evidence allegedly taken from Facebook and Whatsapp by the alimony payer, on which the court decision was based, is not legally valid and is not in the nature of evidence to be taken as a basis for a judgment. The Chamber reminded the regulation that the unlawfully obtained evidence in the HMK cannot be taken into account in the proof of a case by the court. stating that the footage he took was obtained unlawfully by the alimony taxpayer, he considered the evidence obtained through Facebook and Whatsapp unlawful. In fact, if the person shared these images on his social media account open to third parties, the other party should be able to use this evidence.<\/p>\n

In another decision regarding the poverty alimony, the 3rd Law Department of the Supreme Court of Appeals reversed the decision by stating that it was not right to take the photographs taken from Facebook without the consent of the woman and submitted to the file as evidence, without discussing and evaluating the value of them as legal evidence.<\/p>\n

The 3rd Law Department of the Court of Cassation stated that this illegally created evidence cannot be taken as a basis for the judgment, since the audio recording taken as the basis for the judgment in the unjust enrichment case was formed without the consent of the plaintiff, and this situation was also determined by the decision of the Criminal Court.<\/p>\n

In a decision of the 4th Law Department of the Supreme Court of Appeals, in an incident between two people on the street where a camera was installed for security purposes in one of the houses, the apartment stated that the purpose of that camera was only for the security of the owner of that house, and these recordings could not be used as evidence.<\/p>\n

In another decision of the 4th Law Department of the Supreme Court of Appeals, dated 2014, a deputy called a district head, swearing and forcing him to resign. As it is understood from the decision, the head of the district recorded this meeting and filed a lawsuit. In this case, the Chamber accepted this record as lawful. The reason why this record was accepted as lawful is that the head of the district did not make a fiction or plan in advance in order to obtain this evidence. The decisions of the Penal General Assembly are parallel to this.<\/p>\n

What are the legal and contrary evidences in labor cases and general courts?
\n\"\"<\/strong><\/h4>\n

The 9th Civil Chamber of the Supreme Court deals with labor cases. In the concrete case, the company gave a computer to its employee, and in an examination of the computer it gave to the employee, it was determined that the employee was making conversations with others against the company and terminated the employee’s employment contract. During the lawsuits arising from labor rights, the employer submitted the examination records that he had made on the computer, and the 9th Law Department accepted these records as legal evidence. The reason for the office to accept these records as legal evidence is that the worker cannot do his private work on the computer; The employer has the right to have all kinds of examinations made on the employer’s computer.<\/p>\n

Is the evidence obtained through Facebook and WhatsApp illegal? Can it be used as evidence in divorce cases?<\/h4>\n

In the concrete incident, which was reflected in a decision of the 9th Law Department of the Supreme Court, there is a Whatsapp group among the workers. Workers made statements against the employer in this Whatsapp group. The employer also learned about this, and by applying pressure on one of the workers, he determined that the other worker wrote against him and presented this as evidence in the lawsuit filed. The Chamber has concluded that this evidence was obtained unlawfully, and the reason is that the employer took the phone of one of the workers by pressure and detected the correspondence of the worker, who is the defendant party.<\/p>\n

TO CONTACT NOW:\u00a00 541 485 92 48<\/a><\/strong>","protected":false},"excerpt":{"rendered":"

TO CONTACT NOW:\u00a00 541 485 92 48 ILLEGAL EVIDENCE IN DIVORCE CASES What are the unlawful evidences in criminal proceedings? Before the Code of Civil Procedure came into force in 2011, there was no regulation in the HUMK regarding unlawful evidence. In Articles 36 and 38 of the Constitution, it was regulated that unlawful evidence […]<\/p>\n","protected":false},"author":12,"featured_media":2806,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_joinchat":[],"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2805","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-makaleler"],"_links":{"self":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2805","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=2805"}],"version-history":[{"count":1,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2805\/revisions"}],"predecessor-version":[{"id":3955,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2805\/revisions\/3955"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media\/2806"}],"wp:attachment":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=2805"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=2805"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=2805"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}