In divorce cases, the parties allege fault against each other. The plaintiff bears the burden of proving its claims. Because divorce cases concern family life, the most important part of private life, some proceedings fail to respect the line that protects private life.
Allegations concerning sexual life, which lies at the center of private life, must be proven in a way that protects the privacy of personality rights and does not violate them clearly and seriously.
So how can a spouse who alleges adultery prove that allegation?
First, we would like to point out the following. Under no circumstances may rights protected by the Constitution be violated, except as permitted by the exceptions set out in the Constitution.
However, we must also note that every specific case has its own features and must be assessed and resolved on its own terms.
Under Article 189/2 of the Code of Civil Procedure (No. 6100), evidence obtained unlawfully cannot be taken into account by the court in proving a fact. According to Pekcanıtez, the following are, as a rule, considered unlawful evidence: evidence obtained by violating personality rights in general, evidence obtained secretly either directly or by recording a telephone conversation on tape, evidence obtained by listening in on a confidential conversation without the other party's knowledge, statements about the grounds for divorce by a witness who secretly watched a married couple in their home, evidence obtained through secret video recording, evidence obtained by violating the confidentiality of communication by letter and post, evidence obtained covertly, and evidence obtained in breach of criminal procedure rules (Medeni Usul Hukuku, p. 599 et seq.).
However, there is nothing unlawful, for example, in using security camera footage from a property in favor of the person who lives there. Likewise, if the other party consented during a telephone conversation, the recording is not considered unlawful evidence (ibid., pp. 600-601).
It will be clearer to address the legal problems commonly encountered under a few question headings.
What does obtaining evidence unlawfully mean?
The lawfulness question arises particularly with evidence obtained from digital devices such as mobile phones or computers, or from social media accounts.
The Code of Criminal Procedure (No. 5271) governs how digital data and communication data such as telephone conversations must be obtained. It is not lawful for one spouse to obtain the other spouse's information by cracking the password of their phone or, where the data has been deleted, by having a digital recovery examination carried out without their knowledge and consent.
Evidence obtained through an examination that was not ordered by a court and not carried out by qualified experts cannot be reliable. It may well have been tampered with or altered. Particularly in divorce cases, the parties often start acting with the intention of harming each other. For this reason, there is a real risk of fabricated evidence.
Is it lawful for one spouse to record the other's voice without consent?
Having a phone examined or recording phone calls with spyware is a crime. In such a case, the affected party may request that the evidence not be relied on in the proceedings and may also file a criminal complaint with the Chief Public Prosecutor's Office requesting that an investigation be opened.
Violating the confidentiality of communication between persons, or recording or unlawfully disclosing the content of communications, without complying with Article 135 of the Code of Criminal Procedure is a crime under Article 132 of the Turkish Penal Code (No. 5237), titled “Violation of the confidentiality of communication.” As can be seen, the legislator has made the violation of freedom of communication a separate crime because this freedom is one of the most important elements of a pluralistic society with many voices. Moreover, unauthorized access to an information system is a crime under Article 243 of the Turkish Penal Code, and placing data in a system or transferring data in a system elsewhere is a crime under Article 244. If a smartphone is regarded as an information system, Article 134 of the Code of Criminal Procedure sets out how such a system may be accessed, searched, copied or seized. (Ersan Şen, Casus Programla Dinleme)
Is it lawful to use a spouse's diary in a divorce case?
In its decision dated September 25, 2002 (Docket No. 2002/2-617, Decision No. 2002/648), the Court of Cassation Assembly of Civil Chambers accepted that a diary kept by one spouse may be submitted as evidence by the other spouse. The Assembly made the following assessments in its decision: “Evidence not obtained through unlawful means cannot be regarded as prohibited evidence.
A divorce case is by its nature a case concerning people's private lives. If a husband submits to the court as evidence photographs, a notebook or letters belonging to his wife that he came across in the home they share, this evidence will be considered by the court, because it was not obtained through unlawful means. A wife living in the same home is in a position to know that her husband could come across this evidence. When the husband finds a notebook the wife has hidden in a cupboard in the bedroom or under the bed, that place cannot be regarded as the wife's private space, since it is a place where the spouses share their common life. No one can be deemed to have obtained evidence unlawfully by finding it somewhere in their own home. On the other hand, the private areas of private life may be proven by evidence concerning those private areas. Just as there is nothing unlawful when a husband breaks down the door and enters while his wife is making love with another man in the bedroom of the shared home, obtaining a notebook kept in the shared home cannot be considered unlawful either. Spouses are legally required to remain faithful to each other throughout the marriage. The wife's private life in these matters concerns her husband, the life partner she joined through marriage, at least as much as it concerns her. For this reason, there should be no hesitation in considering the defendant's diary as evidence.”
In its decision dated October 20, 2008 (Docket No. 2007/17220, Decision No. 2008/13614), the Court of Cassation 2nd Civil Chamber held: “The evidence submitted was obtained in the home where the spouses lived together, through a system the husband set up without the defendant's knowledge. The expert examination found that the audio recordings on the CD were original and had not been subject to any addition, deletion, cutting or copying. The defendant-plaintiff does not claim that the recorded conversations are not hers. She objects on the grounds that this evidence was obtained in violation of the privacy of her private life. (...) Within the marital union, spouses are also legally required to remain faithful to each other throughout the marriage (Civil Code, Article 185/3). The private life of one spouse in this area concerns the other spouse, the life partner they joined through marriage and live with, at least as closely as it concerns them. Therefore, in marriage, the area of statutory obligations relating to the marital union is not the private sphere of each spouse but the sphere of family life. In this area, what matters and takes priority is not the individual private lives of the spouses but the privacy and inviolability of family life as a whole. In this respect, the area of statutory marital obligations is not inviolable as regards the other spouse. Therefore, where the plaintiff-defendant, suspecting his wife's fidelity, placed a voice recorder without her knowledge in the home they shared as their common space, recorded her non-public conversations and thereby documented conduct incompatible with the duty of fidelity, there can be no question of a violation of the privacy of private life, and it cannot be accepted that anything unlawful occurred.”
The main point the Court of Cassation emphasizes in its decisions on this subject is whether the evidence came to light in the residence the couple shared. If one party finds information or a document about the other at home, that party may use this evidence in the divorce case.
The Court of Cassation characterizes evidence produced as part of a deliberate plan as “manufactured evidence.” It holds that evidence created by one spouse by setting a trap for the other is not lawful.
In a decision of the Court of Cassation Assembly of Civil Chambers dated November 26, 2014 (Docket No. 2013/4-1183, Decision No. 2014/960): “...the dispute centers on whether it was unlawful, in other words whether it constituted an attack on the plaintiff's personality rights, for defendant B..., in order to obtain evidence for a civil case that was pending between him and the plaintiff before this action, to send the other defendants to the plaintiff doctor's private practice posing as patients, have the conversations during the examination secretly recorded and submit the recordings to the file.
As stated above, obtaining evidence improperly is one thing and creating evidence improperly is another. While evidence obtained improperly may be considered depending on the circumstances of the specific case, evidence created improperly can in no way be accepted as evidence. (...) The incident giving rise to the action did not involve a suddenly developing situation. On the contrary, the case file establishes that there were long-standing disputes and lawsuits between the plaintiff and defendant B. Nor was there any risk that the evidence could not be obtained again, because nothing prevented the defendants who went to the plaintiff's practice from being named and heard as witnesses. Therefore, it must be accepted that the defendants' acts constituted an unjust attack on the plaintiff's personality rights.”
In divorce cases, our law firm conducts the legal process in the best possible way while protecting our clients' rights and privacy to the highest standard.