Social media and communication programs, which have been actively involved in every aspect of our lives recently, are growing their influence day by day. As a result of this growth It has now become one of the types of evidence in our trial law.
Can such social media and communication applications, which are included in our lives in this way, be shown as evidence in trial law? In which way can they be accepted as evidence? How should it be presented in order to be considered as evidence? Can private correspondence be presented as evidence? What crimes are committed if a person's correspondence is illegally obtained and can such information be presented as evidence? We will discuss these.
Evidence means the means to prove something. Evidence and methods of proof have been discussed in criminal and civil proceedings. Without going into these details here We will evaluate the nature and conditions of Whatsapp correspondence as evidence in both criminal and civil proceedings.
Accordingly, in our legal system for something to be considered evidence, it must not have been obtained unlawfully. Information, correspondence, video and audio recordings obtained unlawfully cannot be accepted as evidence and will not be taken into account by the court. If the opposite were the case and the evidence obtained unlawfully were accepted by the court, the court and the legal system would have condoned an unlawfulness, and the rule and principles of law and the right to a fair trial in trial law would be damaged. The occurrence of such a situation would create a greater problem than the interest in the case of admission of unlawful evidence.
Relevant articles in the Code of Criminal Procedure and the Code of Civil Procedure:
Criminal Procedure Code:
Article 217 - f. (2) The charged offense may be proved by any evidence obtained in accordance with the law.
Code of Civil Procedure:
ARTICLE 189 f. (2) Evidence obtained unlawfully cannot be taken into account by the court in proving a fact.
After explaining this very important detail WhatsApp Let us look at the status of their correspondence in this regard. First of all, as we have discussed so farWhatsApp correspondence obtained illegally cannot be used as evidence and cannot be taken into account by the court during the trial. This is true even if the available WhatsApp correspondence supports the allegations and facts beyond doubt.
In order for WhatsApp correspondence to be legally admissible as evidence, the person offering the WhatsApp correspondence as evidence must be a party to the WhatsApp correspondence.. Accordingly, WhatsApp correspondence will be considered by the parties to the correspondence in question and, if the correspondence in question was written in a WhatsApp group, by each person in that WhatsApp group..
Obtaining such a correspondence by unlawfully accessing a person's information system constitutes a crime in addition to not being accepted as evidence because it is unlawful. In the Turkish Penal Code, ”Article 136 of the Turkish Penal Code, which is regulated under the subtitle “Unlawful transfer or seizure of data” and also “Accessing the information system” Article 243 of the TCC, which is regulated under the subtitle of Article 243, addresses these issues. Accordingly
TCK
Article 136- (1) Any person who unlawfully gives, disseminates or obtains personal data to another person shall be sentenced to imprisonment from two to four years.
Article 243- (1) Anyone who unlawfully enters or remains in the whole or a part of an information system shall be sentenced to imprisonment up to one year or to a judicial fine.
It is stated. Another point that we should draw attention to here in Article 243 of the TPC is that it does not stipulate the condition of recording the data in order for the crime to occur, and considers entering the IT system sufficient for the crime to occur.
-WhatsApp correspondence can be used as evidence in divorce proceedings:
If the spouses secretly check and intercept each other's WhatsApp correspondence, the WhatsApp correspondence in question will be obtained unlawfully. WhatsApp correspondence obtained in this way cannot be considered as lawful evidence and will not be taken into consideration by the court due to their unlawfulness. However, insulting and threatening statements of one of the spouses in WhatsApp correspondence between spouses can be presented as evidence. In addition, if one of the spouses discloses infidelity in WhatsApp correspondence, these correspondence can be submitted to the court as evidence.
Lastly, it should be noted that it does not mean that every WhatsApp correspondence, if lawfully obtained, will resolve or conclude the dispute or claim in question. The judge and the parties will also examine whether these WhatsApp correspondences were sent by the person in question, without fraud or manipulation, leaving no room for doubt.