I-INTRODUCTION

People have been in cooperation and created a society for subsistence and to have better living circumstances. Being a part of society requires us to live with others, which lays a burden on them. However, the fact that an individual who has responsibilities towards society lives in a crowd does not mean that they do not have their personality and private space and that they are an entity devoted to society with everything.

Every person has a personal life apart from the society, should be respected by every other person and concerns only the individual. The abstract of -private life- is that it concludes a person-s attitude and behaviour only. Private life remains with the person-s need to isolate from society, and it assures their private life.

According to the European Convention of Human Rights Article 8: Everyone has the right to respect their private and family life, home, and correspondence.

According to the Turkish Constitution Article 20: Everyone has the right to be respected in their private and family life. The privacy of private and family lives are inviolable.

As a personal right, the protection of this privacy becomes a matter. The Turkish Constitution has not regulated the exact meaning of private and family lives, the extent and boundaries of privacy. Constitution-s regulation is that -these can only be effected by judicial decision. These are known as -personal rights- according to Turkish Civil Code Article 24.1

As stated in the paragraph, -private life- has been protected by national and international legal texts. As technology improves, the protection of private life has become a much more important matter for all. Therefore, regulations about the protection of privacy are needed for every nation in the world.

II-HOW TO COMMIT TO THE CRIME OF VIOLATION OF PRIVACY? EXAMPLES ABOUT THE CRIME AND THE TERMS OF VIOLATION OF PRIVACY (TURKISH PENAL CODE ART. 134)

A-General Information and The Definition of The Crime of Violation of Privacy

Crime of violation of privacy has been formed in art. 134 of Turkish Penal Code No. 5237. The legislator aimed to protect people's habitats by making this legislation and enforcement legislation by the Constitution and ECHR about violation of related articles (Const. Article 8 and ECHR Article 20).2

Although privacy involves the life in residences, breaking into a residence or not leaving the residence by the residents will violate dwelling immunity, Turkish Penal Code Article 116, not Article 134.3

However, all violations of the immunity of the dwelling apart from these acts will be evaluated within the scope of TPC article 134 since the life inside the dwelling will also enter private life. For instance, vehicles inside or outside the house and eavesdropping are evaluated and punished under Article 134 of the TPC.

Private life involves communication, and the violation of communication is a part of art. 134, although the communication made by devices' violation of privacy has been regulated in article 132, Article 134 will not be applied.

Except for the legal values protected by special provisions by the legislator like these, the provisions of TPC 134 will be applied in all interventions to the person's private life.4

B-Objective Elements of Typicality (Material Facts)

a) Matter of Fact

Article 134 of the Turkish Penal Code, where the crime of privacy is regulated, and Article 20/1 of the Constitution used The term "private life," which is a general and abstract term, there is no definition in the Turkish Penal Code or the Constitution as to what it means.

According to the doctrine, it is seen that two aspects of human life are predominantly divided into three. Accordingly, a person's living space is divided into three: public, private and secret. Public living space; It is the area where activities are open to everyone and where it is not harmful to be known by others.

People are social beings, and they share their lives with others. It is a general aspect of human life, and it does not need legal protection. Within this, the violation of this does not commit the crime of violation of privacy.

However, individuals have the right to demand respect for the privacy of their private life in the public sphere. It should be accepted that some events in this area may also constitute the subject of this crime.5

The decision of the Supreme Court in this regard is as follows: "The concept of private life, which constitutes the subject of the crime of violation of privacy regulated in Article 134 of the TPC; It does not only consist of the life and privacy of the person between the closed doors that he does not share with others, away from the eyes, between the four walls but also includes all of the completely private life events and information that everyone does not know or should not know, which can be explained to other people when desired. Therefore, being in a public area does not imply consent to the listening, viewing, recording, and continuous and unauthorized possession of every image or sound in this area. Even when you are in a public area, the principle of "not attracting attention in the crowd, being unrecognizable, obscure" is valid, and continuous auditing and inspection are carried out in order to determine what the person in the public area does during the day, where he goes, why, how, where and when he meets with whom. The information obtained as a result of his detention or his activities that he does not want to be seen and known by others, which are not doubtful when he enters his private life, are included in the concept of private life; However, events and information that do not contain continuity and are not included in the private life cannot be evaluated within this scope." As a result, while determining whether an event or information is within the scope of the concept of private life, not only the characteristics of the physical environment, the position of the person in the society, his profession, duty, whether he is recognized by the public, his external behaviours, consent and predictions, social relations, etc. criteria such as the degree of intervention should also be considered." In this decision, the opening and reading of the judicial notification made to the victim by the accused were evaluated within the scope of TPC article 134.6

In the incident where the perpetrator, hiding in the coal pit near his house, focused the shooting direction of his working camera on the women and girls passing through the street, and recorded the images of their physical privacy without their knowledge and consent, the Supreme Court made the following determinations: "Although it is accepted that the accused secretly recorded the images of women in different age groups who were passing or standing on the street, focusing on the erogenous areas such as the face, hips, feet, legs, the concept of private life; Even when it is in the public area, it is not just about the life and privacy of the person away from the eyes, that he does not share with others, between closed doors, between four walls, but also that everyone does not know or should not know, that can be explained to other people when requested, and that it contains all of the completely private imaginary events and information, Considering that the principle of inconspicuousness, obscurity and obscurity in the crowd is valid, and that it is not possible to accept that every person who goes out into the public area consents to the recording of every image or sound in this area and to keep it permanently and without permission, It is not possible to detect or record an impossible private life event because the women whose images are recorded can be seen and watched by any passer-by as they are recorded. If the act of the accused is accepted as a crime, it is necessary to admit that the person who looks at an area of the woman passing by and advancing in front of him, which is zoomed from time to time, such as her butt, is also guilty." In other words, it is against the law to acquit the accused on illegal grounds that reduce private life to a place only.7

In another decision, in a period when the divorce case they are a party to is still ongoing and they have been living apart for a long time, the accused wears a hat and mask and takes pictures of the victim's side by side in public places to prove that there is a relationship between his wife and the other victim, considered as a crime.8

In another incident, it was accepted that persistently going after a woman and taking their pictures from a distance of 25 meters would constitute a violation of privacy.9

b) Perpetrator and Victim

aa) Perpetrator

Anyone can commit the crime of violation of privacy. If the private life is being shared with others, these people have the right to protect their private lives against each other.10 Therefore spouses have the right to demand protection and respect for their private lives.

It is accepted that the perpetrator of the crime can be anyone. However, according to TPC 137, committing the crime "by abuse of the authority given by the public official or by taking advantage of the convenience provided by a certain profession and art" will constitute the qualified version of this crime.

Due to legal entities' commission of this crime, security measures specific may also be applied to legal entities (TPC art. 140).

bb) Victim

Anyone "alive" can be a victim of this crime. However, the evaluations of "public figures" on victimization are made differently than other individuals. This issue will be discussed in detail below.

Recording and disclosing the image of a deceased person will constitute the crime of insulting the person's memory, which is regulated in TPC Article 130/2.

c) Act, Consequence and Relation of Causality

Two different crimes have been legislated in the first and second sub-articles of Article 134 of the Turkish Penal Code.

According to article 134/1; A person who violates the privacy of people's lives receives imprisonment from 1 year to 3 three years. Recordings of images or sounds of privacy in the event of a violation, the penalty to be imposed are increased by one fold.

The typical act of this crime is "violation of the privacy of private life." Therefore, any behaviour that interferes with the privacy of private life will constitute this crime.11 Although a person's private living space is mentioned, there is also a secret living space. Violation of the secrecy of both areas will constitute this crime.

A private living area is a space non-public, such as family, relatives, and friends; it is an area that person shares with a limited number of people with whom they have a close relationship. The secret life area, which is not normally shared with anyone, is reserved only for oneself, open to those they hold dear or trust the most. This includes a person's sexual and emotional life, diseases or religious beliefs.

In other words, learning of one's fantasies, sexual orientations, political views and religious beliefs will constitute this crime.12

The victim does not have to receive damage within this crime, so it is considered a dangerous crime.

Violation of Private Life via The Internet or Social Media (Informatics)

According to the Criminal General Assembly of the Supreme Court, sharing a photo or video of a person on a social media application without the person's consent constitutes "the crime of illegally giving or seizing the data" regulated in TPC 136, not TPC 134.13

To summarize the approach of the Supreme Court to this crime; If there is a photograph that depicts the victim in daily life and does not contain an element of private life, the Supreme Court does not see it within the scope of article 134. For this reason, the spread of a photo of the same quality on social media is not within the scope of TPC article 134. These crime penalties evaluate within the scope of TPC Article 136.

In the case of pictures entering private life, for instance, "The act in which the accused, took off the clothes of the victim, who was under the age of eighteen, and secretly recorded the images of the victim on his computer, constituted the crimes of obscenity and violation of the privacy of private life."14

The Crime of Violation of Privacy With Disclosure of Images or Sounds

According to article 134/2 of the Turkish Penal Code, The images or sounds of people's private life are against the law. Anyone who discloses it as such is punished with imprisonment from two to five years. Disclosed If these data are published through the press and broadcast, the same penalty will be imposed.

'Disclosure of the legally or illegally captured photos or sounds' is the typical act of this crime. It doesn't matter what form the disclosure takes. It doesn't have to be public either. What matters is the illegal disclosure. This means the crime will occur even if the data was captured legally, but the disclosure was illegal.

Therefore, even if the sounds and images of a person's private life are legally captured, a crime will occur if they are unlawfully disclosed. For instance, if these sounds and images are shared with third parties without the person's consent, a crime occurs.15 For instance, the photos of X, who was having fun at the bar with another girl despite his girlfriend, that the girl was allowed to take as a souvenir, were published by the X on a social site on the internet.16

The general belief in doctrine is that even if the person can not be identified, the crime will take place.17

d) Reasons for Increasing the Penalty for Violation of the Privacy of Private Life

aa) Violation of Privacy by Recording Images or Sounds (Article 134/1 s. 2)

If the privacy of private life is violated by recording the sounds or images, the perpetrator will be punished one more time.

The recording can be by image or sound recorder. This is the qualified state of article 134, so the perpetrator will not be sentenced with article 134/1 s. 1. 18

For this qualified state to be applied, one of the images or sounds that must be recorded is sufficient. Both do not need to occur.19 For instance, the Supreme Court evaluated the taking of photos of a woman's waist and legs, such as; the waist and legs, with a mobile phone, in this context and punished the perpetrator within the scope of qualified behaviour.20

bb) Abuse of Offenses by a Public Official and the Power Granted by His Duty Processing by Use(Article 137/1-a)

In this case, the penalty to be imposed will be half-rate increased.

cc) Benefiting from the Convenience of a Certain Profession (Article 137/1-b)

For instance, a store manager putting a camera in his cabin and recording is within this scope. In this case, the penalty to be imposed will be half-rate increased.

dd) By the Personnel of the Enterprises Providing Electronic Communication Services Processing

According to the Electronic Communication Law No. 5908, operators authorized to provide electronic communication services who commit crimes against private life and the secret area of life, article 134 will be applied to them.

However, in article 137, increases to be made according to the qualified cases are applied as one layer. Qualified cases are regulated as reasons that increase the penalty.

C-Subjective Elements of The Typicality (Spirituel Facts)

The crime is committed with the general intent. Possible intent is also sufficient.21 In this case, the punishment will be decreased by article 21/2.

The reason why the privacy of private life is wanted to be learned is not important in terms of the existence of the intent. The intent of violation of private life does not matter. If the perpetrator knows and wants the victim's personal life violation, the crime will occur.

D-Reasons for Compliance with the Law of Violation of Privacy

aa) Fulfillment of Provisions of Law

Interference with privacy should not be based on any right or authority in order for the crime to occur. Especially interfering with certain public officials, the privacy of individuals' private lives in cases where they give the authority, the act is per the law.

For instance, within the framework of confiscation (CMK article 126 and its continuation), using a secret officer (CMK article 139) and monitoring with technical means (CMK article 140), interventions to private life do not constitute this crime because they are based on an authority given by the law. However, even if such authority is issued, if the limits of this authority are exceeded, a crime will still occur.22

For instance, according to article 140/5 of the Criminal Procedure Code, "The monitoring protection measure by technical means cannot be applied in the residence of the person." A crime will occur if the video and audio recordings are made in the person's residence without complying with this provision.

bb) Consent of The Person Concerned

The right to privacy belongs to the right holder, albeit partially. It is a saving right. Therefore, the person's private life, the explicit or implicit The person who intervenes based on their consent does not commit this crime. However, the consent explained within the scope makes the act committed within this framework lawful.

For this reason, if the consent given to entering the private living area does not include its recording or disclosure, but if one of these acts has taken place, the act will continue to be unlawful. However, the disposition of this right should not violate his personality and human dignity. If it does, the consent given will be void.

For instance, a person may have consented to discuss his private life on TV, but the crime will still occur if their private life is so much as offended.

cc) The right to inform

An event that falls within the scope of the press's right to privacy is lawful as long as it stays within the framework of the conditions of the right to inform. Therefore, there is a reason for compliance with the law in terms of acts committed within the framework of the practice of journalism, which is the use of the right.

Celebrities and The Crime of Violation of Privacy

Crime of Violation of Privacy via The Media

A subject that often causes controversy in practice is the publications made by the media, especially regarding the private life of famous people. When matters such as a model's private conversations with her lover or a businessman's extramarital affairs are made public by the mass media, the people concerned complain that their privacy is violated. In contrast, the media argues that these publications are in the public interest and are doing their journalistic duties. A similar situation is also in question in the news that concerns the private life of politicians.23

It is necessary to evaluate the situation of mass media, which announces such relations or behaviours of publicly known persons to the public, in terms of freedom of the press (ECHR article 10) and protection of private life (ECHR article 8).

The right to criticize and inform is a part of the freedom of the press, which is under constitutional guarantee. However, in some cases, a conflict can occur between the right to inform-criticize and the right of personality. In this case, an event has to benefit from the right to inform. By emphasizing this right, the ability to wrap a broadcast that concerns personal rights in accordance with the law depends on the circumstances. In this case, benefiting from the right to inform and cover a broadcast that concerns personal rights in accordance with the law depends on the fact that the subject of the broadcast is news.24

Journalists have the right to report current events of public interest to the public after actually investigating them. For this condition to be considered fulfilled, the following conditions are required:

  • the event must be real,
  • being up to date,
  • an explanation must contain public interest,
  • to attract the interest of the public,
  • between the news and the expressions used, the existence of an intellectual bond, expressions and value judgments should not be included in the article.

It is necessary to examine the publication of matters that fall within the sphere of private life in terms of "public interest" in terms of Article 134 of the TPC.

About the public interest, the reader's abstract curiosity (in the words of the Supreme Court, "morbid curiosity feelings'") are not oriented towards satisfaction. Here, the superior should aim to protect moral and legal values.25

Although some information about the person's private life is disclosed by the press without the consent of the person, the above conditions and especially if there is a public interest in the making of this news, the broadcast will be lawful.

As we have stated, if there is the consent of the persons concerned, a matter concerning their private life may be in the public interest. It may be published even if it is not out of date or even not true, and this is not a crime.

ECHR has made an important decision about this matter. Date: 06.24.2004 `Hannover/Germany` The applicant, Princess Caroline of Monaco, requested to stop the publication of her photographs. She made judicial attempts in Germany but failed. The applicant applied to ECHR, claiming her private life has been violated. The Court noted that privacy and freedom of expression could be limited in order to protect others. The main point here is that whether the evaluation to be made justifies the publication in terms of public interest.

In the Court's view, two main situations must be distinguished: On the one hand, it concerns politicians in office and the democratic there is the transfer of events that can contribute to the discussions in society; other on the other hand, as in this case, the private life of individuals who do not perform official functions convey the details. In the first case, the press provides information and opinion on matters of public interest while distributing; In the second case, this is not the case. From this perspective, the reason for the publication of the photos is to inform the readers about the private life of a particular person.

When it comes to satisfying one's curiosity, this criterion has undoubtedly not been met,

This behaviour does not contribute to a discussion that concerns the general public.

In the incident in question, the privacy of the applicant's private life (Article 8 of the ECHR) was violated.

Therefore, the press has no contribution to its role in a democratic society because the tabloid news is watched at high rates and attracts the public's attention; in this case, the publication will not be lawful.

dd) Exercise of The Right

Within the scope of the right to defend one's right, the person who makes audio and video recordings by interfering with his private life, the deed becomes lawful.

According to the Supreme Court in this regard; "In sudden situations where the person does not have the opportunity to obtain evidence again and does not have the opportunity to apply to the competent authorities, for example; prevent the loss of potentially lost evidence and present it to the competent authorities in case of a crime such as; sexual assault, insult, threat, slander or blackmail being committed against them, or to prevent an unjust attack against themselves or their family unit, damaging their honour, it is not possible to accept that the acts of listening, watching or recording speech and communication contents or audio and images related to private life, without the knowledge and consent of the perpetrating party, for the purpose of the attack, are unlawful, and, in these cases, since the person acts with the awareness that they are acting against the law."26 However, in the continuation of this decision, the court's decision is open to discussion.

According to this; "Suspecting the loyalty of the participant, who is his spouse, and who thinks that he has been cheated on, the defendant connects the monitor multiplexer and VGA monitor cable to the computer used by the participant, connects the monitor with the computer that the participant is using, from another computer monitor they placed in their empty apartment on the upper floor, defendant secretly followed the conversations, on 21.10.2006, realizing that the participant was making a video call via MSN, the defendant started watching the conversation via the internet, a participant called his brother in the room for a while. They watched together and then continued to watch the meeting alone, from the workplace of the participant. While watching, he saw that a boyfriend she knew from work was talking, saying sexually explicit words to the other person while they were talking, and entering into a relationship called 'virtual sex.' The following day, leaving the voice recording function of his mobile phone on, after placing it on the room secretly, by asking questions about the previous night to the participant, making accusations, recording the answers given by the participant on the subject and the conversations between them, then mentioning the video call made by the participant and recording the content of the conversation on his mobile phone as evidence to the court in the divorce case he filed against the participant. In the case that is the subject of his allegation, the decision was upheld because the accused did not have any intention and the crimes committed were not formed in terms of legal elements."

According to Durmus Tezcan regarding this decision; The existence of intent is clear here. To express in general, the existence of a marital relationship does not mean that the parties cannot have a private life towards each other. The interventions of couples in the divorce phase that violate the privacy of the other's private life based on suspicion or to obtain evidence against each other will not be by the law.27

E-Special Appearances of The Crime

a) Attempt

The crime of violating the privacy of private life is a crime of pure action. Therefore, only enforcement actions. If the actions can be divided, there may be an undertaking. The image or voice of the victim has been recorded, and if the victim understands this situation and has these records deleted, although these records are not used, the crime will still be completed.

Considering the practice, it is seen that the attempt is especially in terms of the second paragraph. For instance, the financial interest of a recorded image of a famous person's private life. Suppose the perpetrator is wanted to be sold to the press in return, but the perpetrator is caught upon notice. In that case, the perpetrator will be punished for attempting to comply with 134/2, not Article 134/1.28

b) Assembly

Capturing personal data regulated in art. 134 and 136 in practice, or It is seen that there is a lot of difficulty in determining the distinction between the crime of spreading.

The decision of the Supreme Court on this issue is very important. According to this; In the regulations on the protection of personal data in Articles 135 and 136 of the TPC, there is no provision regarding the protection of only confidential personal data. On the contrary, in the justification of Article 135, it is stated that all kinds of information about a natural person should be considered as personal data. The acts of giving, disseminating and illegally seizing the data constitute the crime of illegally giving or seizing the data in Article 136 of the TPC. For this reason, personal information that is known and/or easily accessible by everyone is also considered "personal data" in the legal sense. However, in order not to cause negative consequences such as; uncertainty in practice and the fact that almost every action constitutes a crime, by expanding the application area of the crime of illegally giving or seizing the data, a meticulous evaluation should be made by taking into account the characteristics of the concrete case, and any branch of law should consider the event. It is necessary to determine whether there is a reason for compliance with the law or an issue that can be taken into account in this context. It should also be determined that the accused knows or can know that they have acted unlawfully. In addition, although there is no doubt that a private life image or voice is "personal data," fixing the image or voice of the person's private life to a certain electronic, digital, magnetic place, without his knowledge, with a device capable of taking or recording a picture. 134/1 of in the second sentence of the article; to be disclosed without consent; spreading, revealing, revealing, declaring, making public, making it public, in summary; 134/2 of the TPC. The image or voice regarding his private life is legally defined in Article 136/1 of the TPC. It cannot be considered as personal data within the scope of the article.29

In addition to violating the privacy of private life, in case the audio or images obtained in this way are recorded, since recording is the qualified form of this crime, only TPC article 134/1 sentence two is applied. In addition, the perpetrator cannot be penalized pursuant to article 134/1 sentence 1 of the TPC due to the violation of the privacy of private life. On the other hand, if audio and video recordings related to private life are disclosed, if the recording and disclosure are the same people, the perpetrator must be punished due to both; TPC article 134/1 and Article 134/2.30

Suppose the recorder and the discloser are different persons, and there is no will to participate among them. In that case, the recording should be punished according to article 134/1 of the TPC, and the person who disclosed should be punished by article 134/2 of the TPC. If there is a will to participate between those who record and disclose, all accomplices must be punished under both TPC article 134/1 and TPC article 134/2.31

On the other hand, if the disclosure of the sound or image also constitutes the crime of insult, the rules of intellectual discussion between the TPC art 134/2 and the crime of insult are applied.

The Supreme Court decided; In response to the fact that the accused's long-time partner married someone else shortly after she broke up with him, the accused wrote the name and maiden name, the surname and phone number she acquired after marriage, on the photographs of the participant's which are between her kneecap and her head, and stapled it to the participant's underwear and nightgown. In the incident where he left these photographs to the building where he lived and left them to some buildings and streets in Adapazari and Hendek districts, the defendant's disclosure of her underwear and nightgown, which is within the scope of the private living area of the participant, is guilty of violating the privacy of the private life of the participant in the first sentence of the first paragraph of Article 134 of the TPC.

The building where the participant lived by stapling the participant's underwear and nightgown by writing her name and maiden name, her surname and phone number after marriage, on the photographs showing the part of the participant between the kneecap and her head, in reaction to the fact that the participant, with whom the accused lived for a long time, married someone else shortly after leaving him, and leaving these photographs around some buildings and streets in Adapazarı and Hendek districts. The crime of violating the privacy of private life in the first sentence of the second paragraph of Article 134 of the TCK; has concluded that it constitutes the crime of giving or seizing personal data unlawfully, and because these actions of the accused are capable of offending the honour, the prestige of the participant at the same time, per the first and fourth paragraphs of Article 125 of the TPC, the crime of publicly insulting has also occurred, but; "Article 44 of the TCK is to be applied since there is more than one crime in the legal sense, which consists of revealing the photos of the participant, on which the personal data of the participant has been violated, by stapling photographs on the belongings within the scope of her private life, and then revealing them by spreading them. Penalty to be imposed in accordance with the second paragraph of Article 134 of the TCK, which requires the heaviest penalty for crimes committed by means of criminal acts, and for revealing the photos of the private life of the participant more than once at different times and in different places as part of the execution of a decision to commit a crime, in accordance with Article 43 of the TPC. As it can be seen, in this case, for the perpetrator who committed both art. 134/1 and art. 134/2, among the provisions in question, the provisions of the intellectual meeting were applied.

As it is known, in the crime of blackmail, the perpetrator compels the victim to do or not to do something unlawful or not liable or to gain an unfair advantage by mentioning that he will or will not do something that he is right or obliged to do. If the person who violates the privacy of her private life provides an unfair advantage with the threat of revealing it, he is punished for the crime of blackmail (Article 107 of the TPC).

If the crime of violating the privacy of private life is committed against the same victim at different times, the chain crime provisions are applied. However, in order for the chain crime rules to be applied, the same provision of the law must have been violated. However, despite being in the same article, since the crimes regulated in the two paragraphs of Article 134 of the TPC are different, the same paragraph must be violated each time to apply the chain crime rules.32

Article 86 of Law No. 5846 on Intellectual and Artistic Works applies only to paintings and portraits and includes their display or disclosure to the public. With Law No. 5728 dated 23.01.2008, FSEK article 86/2 was edited as "For those who act in violation of the first paragraph, the provisions of article 49 of the Code of Obligations and, if there are conditions, articles 134, 139 and 140 of the Turkish Penal Code are applied." Thus, the provision of TPC article 134 is applied as a sanction for violation of Article 86 of the Law on Intellectual and Artistic Works, which includes the above-limited situations.33

Finally, the crime of breaching the confidentiality of communication (Article 132 of the TPC) is a special form of the crime of breaching the privacy of private life (Article 134 of the TPC). Therefore, there is a special norm – general norm relationship between them. If the perpetrator violated the confidentiality of the communication between persons or disclosed this communication unlawfully, the crime of violating the confidentiality of the communication occurs. Under normal circumstances, the individual's telephone conversations with other people, correspondence over the internet, etc., are included in the individual's private life. Therefore, the violation of their privacy is also a violation of the privacy of private life. However, the legislator has regulated the violation of the confidentiality of communication as a separate crime, considering it worthy of special protection.

In this regard, according to the Supreme Court; "In the event, which was disclosed by recording a private phone conversation he had with the participating Selvi and sending it to the spouse of the participating ... to the participant ... without consent; Since the accused discloses the content of the communication to which he is a party without the consent of the other party, without considering that the act constitutes the crime of violating the confidentiality of the communication complying with 132/3 of the TPC, it is illegal to make a mistake in the characterization of the crime and to establish a judgment according to 134/1 of the same Law, which has no place of application in the incident.

On the other hand, if disclosing the sound or image also constitutes the crime of insult, the conceptual aggregation will take place. As it is known, in blackmail crime, the perpetrator does something that he has the right or is obliged to. It compels him to do or not to do something illegal or not obliged to do or not to do, or to take unfair advantage. If the person who violates someone's privacy also gains an unfair advantage by threatening to disclose it, depending on the situation, they will also be punished for blackmail-Article 107. If the perpetrator commits the crime of violation of privacy against the same victim several times, successive offences take place."34

c) Participation

This crime does not show any feature in terms of participation. Therefore, all kinds of participation in this crime are possible. The General Provisions of the Turkish Penal Code are valid.

F-Complaint and Conciliation

According to article 139, both offences regulated in TPC article 134 are subject to complain. Therefore, the complaint must be made within six months from the date of the crime. If a complaint is not made within this period, the right of the victim to file a lawsuit for this crime will be dropped, and the crime judgment will arise as if it has expired.

In the crime of violation of the privacy of private life, as in the general of the crimes whose follow-up depends on the complaint. Conciliation negotiations must be made before proceeding to the trial. So, this crime is in the frame of conciliation.

Conciliation is a cause of action, so the judgment can't be held if the conciliation meetings are not made. If the parties agree on conciliation, the prosecutor will give his decision on "non-prosecution." In the negative, the cause of action will be completed, and the proceedings will start.

G-Court of Competent Jurisdiction

As we mentioned above, the crime of violating the privacy of private life is a crime subject to complaint. Therefore, the complaint should be made to the police or the prosecutor's office. The complaint can be made verbally by keeping a report or by filing a complaint. If it creates a sufficient level of suspicion due to the investigation to be carried out following the complaint, the prosecutor will file an indictment, and the prosecution process will begin at the Criminal Court of First Instance.

It is possible to withdraw the complaint about a crime that requires a complaint about investigation or prosecution. According to article 134, the victim is free to withdraw the complaint before the criminal process starts. And also, at the investigation or prosecution, stage victims can terminate the penalizing process by the withdrawal of the complaint. The decision that has been made will be 'decision of non-prosecution in the investigation phase, 'dismissal of the case.'

H-Penalty of The Crime of Violation of Private Life

As a sanction, a prison sentence is foreseen for each paragraph.

The penalty of article 134/1 is imprisonment from one year to three years; the penalty of article 134/2 is imprisonment from two to five years. In addition, according to Article 140, if an unfair benefit has been provided to a legal person with the committed crime, security measures (article 60) will be decided about the legal person.

ss that they are acting against the law."26 26]Postponement of Sentences, Conversation Into Judicial Fine, Deferment of The Announcement of The Verdict

If the prison sentence given to the perpetrator with the trial held is less than one year, the sentence of imprisonment may be converted into a judicial fine.

This will be only applied to the situations about article 134/1.

If the prison sentence given as a result of the trial for a crime is less than two years and if the perpetrator has not committed an intentional crime before, the judge may defer the announcement of the verdict. In this case, a five-year supervision period will be given to the perpetrator who is not imprisoned. The perpetrator must not be involved in another intentional crime during this period. The perpetrator, who has to spend the five years following his obligation, becomes "as if he had never committed this crime" at the end of the five years. However, within five years, if he commits an intentional crime, he will have to endure two penalties.

Postponement of sentence may be applicable for a prison sentence of two years or less. Perpetrators who have not been previously sentenced for more than three months for an intentional crime may be benefitted. The court will decide one to three years of supervision about the perpetrator, and he should never commit an intentional crime for this period. If the perpetrator commits an intentional crime, he will have to endure two penalties.

III-NON-PECUNIARY COMPENSATION

Non-pecuniary compensation will be adjudged due to the feeling of sadness, pain, and suffering due to the person's wrongful act. Demandant claims the violation of personal rights morally damages and demands a certain amount of money from other parties.35

Moral Compensation is regulated in article 56.58 of the Turkish Code of Obligations. In the relevant articles, If bodily integrity is damaged, it is stated that an appropriate amount of money can be paid under non-pecuniary damage, taking into account the characteristics of the event. It is even stated that in case of serious bodily harm or death, it may be decided to pay non-pecuniary damages to the relatives of the injured or deceased person.

In case of violation of the privacy of individuals, an attack on personal rights. In this case, within the scope of article 134, the person whose private life has been violated may sue the other party for compensation for non-pecuniary damage. As it is independent of the criminal case, the victim of this crime can try this case in the civil courts.

A judgment made by a criminal court will not directly precede the civil court. However, it will support the claims in the civil case.

IV-ARREST FOR THE CRIME OF VIOLATION OF PRIVACY

According to the Code of Criminal Procedure article 100/1, "Arrest warrant can be given in the presence of the concrete pieces of evidence on strong suspicion and a detention reason. An important fact is arrest warrant con not be given if the sanctions are not measured."

According to article 100/4, "Arrest warrant can not be given about the offences which cause judicial fine only and the offences committed against physical integrity, except the ones committed intentionally, the upper limit is two years."

If we evaluate these provisions within the scope of the crime of secrecy of private life regulated in Article 134 of the TPC, we can conclude that an arrest warrant can be made from a legal point of view. Because the upper limit of the crime regulated in the first paragraph is three years, and the penalty for the crime regulated in the second paragraph is five years. In addition, this crime is not only a crime that requires a judicial fine.

However, for a person to be arrested for this crime, various conditions must be met.

The first condition for an arrest warrant is the "strong belief of suspicion" against the suspect or the accused. The presence of concrete evidence leads to the existence of suspicion.

If there is a strong suspicion of guilt, there must also be a "ground for arrest."

Therefore, the court, which will conduct a second criminal case trial for arrest, will first evaluate whether there is concrete evidence showing the existence of strong criminal suspicion. If there is a strong suspicion that the suspect or the accused has committed a crime, it will also be checked whether there is a reason for the arrest. If there is also a reason for arrest, the court will issue an arrest warrant.

The situations in which a reason for the arrest is presumed to exist are as follows:

  • Escape or concrete phenomenons about the suspicion of escape will be accepted as a reason for the arrest (Article 100/2).
  • The possible blackout of the evidence will be accepted as a reason for the arrest (Article 100/2).
  • Concrete evidence about the catalogue crimes will be accepted as a result of the arrest (Article 100/3).

In other words, if there are strong grounds for suspicion based on concrete evidence that one of the catalogue crimes has been committed, it is automatically assumed that the suspect or the accused will flee, or there is a possibility of obscuring the evidence. For instance, if there is a strong suspicion that the crime of willful homicide or looting has been committed, it is automatically accepted that there is a reason for the arrest.

In summary, for an arrest to be made under Article 134 of the TPC, firstly, there must be strong evidence that the suspect or accused committed the crime, and secondly, there must be concrete facts that will raise the suspicion of fleeing, or there must be a suspicion that it will obscure the evidence. If these two conditions are present, the judge or the court may issue an arrest warrant.

V-PRECAUTIONS REGULATED BY CODE NO. 6284

The purpose of Law No. 6284 on the Protection of the Family and the Prevention of Violence Against Women, in the first article of the law; "The purpose of this Law; victimized or subjected to Victims of women, children, family members and unilateral stalking at risk, to protect people with disabilities and to prevent violence against them, to regulate the procedures and principles regarding the measures."

In subparagraph d of the second article titled "Definitions," violence has been defined as; "Resulting in physical, sexual, psychological or economic harm or suffering to a person or actions likely to result in threats and pressures against it, or deprivation of liberty, physical, public or private, including the arbitrary inhibition of refers to all kinds of sexual, psychological, verbal or economic attitudes and behaviours."

Based on these provisions of the law, psychological violence is also within the scope of this law, and it can be the subject of measures regulated by law.

For this reason, it will be possible to apply the provisions of Law No. 6284 to protect the victim from acts of psychological violence, including the acts constituting the crime regulated in Article 134 of the Turkish Penal Code.

VI-IS THE CRIME OF VIOLATION OF PRIVACY ONE OF THE DISGRACEFUL OFFENCES, OR NOT?

The concept of 'disgraceful offence' has been regulated in Article 76 of the Turkish Constitution, not in the Turkish Penal Code. Considering the practice, in areas other than criminal law, such as career and civil service, it seems that it is used as a measure for being accepted.

The concept of a disgraceful crime in the field of criminal law does not produce any results. In practice, it seems that it is used as a criterion in areas other than criminal law, especially in admitting a person to a profession or civil service.

Disgraceful criminal expression: In the doctrine, it is morally acceptable that society is strongly against the mentioned offence. It is used for shameful criminal acts that are deemed unacceptable. However, this usage is far from providing a concrete field for this expression because it is debatable which crimes should be reacted to violently and which crimes are morally unacceptable.

Whether a crime is a disgraceful crime, special law provisions to be applied to the concrete case taken into account. Such as; Civil Servants Law, Attorneyship Law, Insurance Law... a crime in the category of "infamous crimes." If it is not regulated, that crime is not a disgraceful crime. Generally, after some disgraceful crimes are listed in special laws, it is seen that there is an expression in the form of "crimes" is seen.

However, in the Constitution and special laws, The phrase "like..." is misleading. It is not listed in special laws just because of this phrase. Since these crimes are similar to those considered disgraceful crimes, these crimes also face to face. It cannot be accepted that it is among the blasphemous crimes. Considering a crime as a disgraceful crime, it must be clearly stated in the laws as stated above for it to be valid.

As we explained above, the concept of disgraceful crime is defined separately in special laws. It is a concept that is regulated and applied according to the purpose of that law.

When the special laws are examined, it is seen that the disgraceful crimes, in general, are the following crimes:

  • The offence of larceny,
  • The bitterness of fraud,
  • The offence of abusing the trust,
  • The offence of misfeasance,
  • The offence of bribery,
  • The offence of embezzlement,
  • The offence of defalcation,
  • The offence of forgery of unofficial documents,
  • The offence of forgery of official documents,
  • The offence of counterfeiting on money,
  • The offence of counterfeiting on the precious stamps,
  • The offence of counterfeiting on the seal,
  • The offence of fraudulent bankruptcy.

The offence of violation of privacy has not been regulated as a disgraceful crime in any private law, Constitution or Turkish Penal Code. Therefore, it is not a disgraceful crime.

VII-CD RECORDINGS IN THE ASPECT OF THE CRIME OF VIOLATION OF PRIVACY

Between Spouses

In a divorce case, the CD containing the camera recording that the woman presented as evidence against her estranged husband, the Supreme Court described it as; "unlawful evidence obtained by violating a man's private life." In its decision, Supreme Court stated that it was understood that it was obtained "in an unlawful way by violating the privacy of his private life" and that "unlawful evidence cannot be taken as the basis of the verdict."36

Although the Supreme Court's case-law changes from time to time, the general rule is that the person has no other means of obtaining evidence, and the situation develops suddenly. Suppose a person has the opportunity to obtain evidence in other ways or obtains the evidence as a result of fiction (for example, the person organizes his wife to be with another woman to obtain evidence). In that case, the evidence obtained will be unlawful.

VIII-SUPERVISION OF COMMUNICATION

Supervision of communication via telecommunication; between at least two people, one detecting, eavesdropping, recording or signalling all kinds of communications made by intervening a communication tool, whether the suspect or accused.

Although there is no law explaining what communication means, news, of writing, pictures, sounds and signals by telephone, telegraph, radio and similar electromagnetic waves. Sending or receiving is described as communication.37

Not to confuse with regular mail or courier communication. The concept of "communication" is included in our Law in terms of the title of the chapter specifically mentions the telecommunications route. As such, the classic all kinds of communication other than mail, e-mail, fax, etc. item including covered.38

Conversations can be conversations on the phone, as well as other conversations.

By means of telecommunications, that is information of signal, text, picture, image, sound or other nature in the form of transfers. Supervision of communication institution art. 135 regulated and made possible only for catalogue crimes art. 134.

It is not possible to detect communication since the provision is not among these crimes.

However, although it is controversial in doctrine, calls made from communication devices can be detected in all crimes, even if it is not clear. In this case, the relevant HTS records can be obtained by the Information and Communication Technologies Authority (ICTA) at the request of the Prosecutor's Office or the Court. This records, only from the relevant numbers with which phone numbers how many times and for how long contains information about the interview.

IX-BLOCKING ACCESS

As we mentioned above, the privacy of a person's private life is violated in various ways. Beyond the violation, private life footage, sound recordings,

correspondence etc., can be disclosed. This disclosure; mass media, such as the internet, television, or newspaper, is available via tools. Today, images, voices related to one's private life, records or correspondence are mostly shared over the internet.

Content such as; news, videos, photos, comments published on the Internet or for reasons such as violation of privacy, committing a crime, public interest.

Access to the URL on the website where the content is located may be blocked. If the violation is not resolved, your access to the entire website may be blocked.

This violation is generally published on the internet and constitutes a violation of the law. Content removal or deletion can only be performed by the location or content provider.

It is important to take faster measures in case of violation of the privacy of private life over the internet. Posting nude photos or private videos of someone, uploading those to sites such as YouTube constitutes a violation of privacy.

Persons who claim that their privacy has been violated due to content published on the Internet, in accordance with Article 9/A of the Law No. 5651 on the Regulation of Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts, apply to the ICTA by directly themselves or through their lawyers to prevent access to the content may request.

In this request, the full address (URL) of the publication causing the infringement of the right, the explanation regarding the aspects of the violation of the right, and the information to prove the identity information are included. If this information is missing, the request will not be processed.

The decision to remove and/or block access to the content sent by the ICTA is carried out by the relevant content and hosting providers and the access provider within four hours at the latest. Depending on the violation of the privacy of private life, the blocking of access is made by the ICTA upon the direct order of the President of the ICTA "in cases where there is a problem in delay".

Blocking access is implemented by blocking access to content (in the form of URLs) related to a broadcast, section, picture, or video that violates private life's privacy.

Persons who request the removal of the content or the blocking of access submit the request for the blocking of access to the decision of the criminal judge of peace within twenty-four hours from the time of the request because the privacy of private life is violated due to the content of the broadcast on the internet. The judge evaluates whether the privacy of private life has been violated due to the content of the broadcast on the Internet and announces his decision within forty-eight hours at the latest and sends it directly to the ICTA; otherwise, the precaution of blocking access is automatically lifted.

The decision to block direct access, given by the President of the Information and Communication Technologies Authority (ICTA) in cases where a delay is inconvenient, is submitted for the approval of the criminal judge of peace within twenty-four hours. The judge will announce his decision within forty-eight hours.

X-CONCLUSION

The decision of the Constitutional Court dated 31.03.1987 and numbered E: 1986/24, K: 1987/8 is about the privacy and protection of private life. In this decision, the Constitutional Court considered the right to privacy and protection of private life to continue the personal right.

"Protection of private life means, first of all, protecting the privacy of this life and not revealing it to others. One of the fundamental rights of a person is to demand that what happens there be known only by himself or by the people he wants to know. It is because of this nature that the privacy of private life should not be touched, and it was requested to be protected in declarations and contracts regarding human rights, and this right was protected against state organs, society and other individuals, except for the exceptions clearly specified in the legislation of all democratic countries. The right to respect for private life, which is of great importance for human happiness, is a fundamental right for his personality, and if it is not adequately protected, it is not possible for people and therefore the society to feel peaceful and live in safety. For these reasons, the acts of violating the confidentiality in various forms are considered as crimes and subject to criminal sanctions."

As a result, the right to have a private life is the right that should provide a private life free from interference. Intervention in private life is not legal unless it is based on a legal justification. A human being is a social presence and a part of society. Private life is not limited by personal private life. It contains society's thoughts, expressions, freedom of religion and conscience. The right to have a private life is a basic human right guaranteed by laws and conventions in the national/international arena.

You may be interested in the Financial Crime of Manipulation.

Article Keywords: Crime, Privacy, Privacy Crime, Violation of Privacy, Crime of Violation, Private Life, Private, Personal Rights, Terms of Violation of Privacy, Person, Violation of the Secrecy, Private Living, Public Living, Public Life, Crime of Violation of Privacy.

References & Sources

  1. TEZCAN, ERDEM; Theoretical and Practical Criminal Law, Seckin Publishing, Istanbul 2020.
  2. EKER KAZANCI; Protection of Taking Unauthorized Images of Persons in accordance with TPC Art. 134, Dokuz Eylul University Faculty of Law, Volume: 9 Issue: 1.
  3. GUCLU AKYUREK; Crime of Violation of the Privacy of Private Life, Seckin Publishing, Ankara 2014.
  4. ZAFER; Protection of Private Life and Secret Area of Life by Criminal Law, Beta Publishing House, Istanbul 2011.
  5. HAFIZOGULLARI, OZEN; Offenses Against Private Life and Confidential Area of Life, Ankara Bar Association Journal, Issue: 4, 2009.
  6. OGUZMAN, OZ; Law of Obligations General Provisions, Vedat Bookstore, Istanbul 2019.
  7. TIRTIR, Supervision of Communication via Telecommunication, Istanbul, May 2015.

Footnotes

1. HAFIZOĞULLARI, ÖZEN, "Crimes Against Private Life and Secret Area of Life," Ankara Bar Association Journal, Issue: 4, 2009.

2. Eker Kazanci p. 142; Akyurek, Ozel Hayat p. 188.

3. Eker Kazanci p. 143

4. Eker Kazanci p. 142; Zafer, Ozel Hayat p. 178

5. Akyurek, Ozel Hayat, p. 194 and its continuation.

6. 12th Criminal Chamber of the Supreme Court, File Number: 2015/9708, Decision Number: 2016/10986, Date of the Decision: 29.06.2016.

7. 12th Criminal Chamber of the Supreme Court, 7.4.2014, 10841/8373.

8. 12th Criminal Chamber of the Supreme Court, File Number: 2015/4903, Decision Number: 2018/11371, Date of the Decision: 28.11.2018.

9. 12th Criminal Chamber of the Supreme Court, File Number: 2016/2244, Decision Number: 2017/5453, Date of the Decision: 21.06.2017.

10. Zafer, Ozel Hayat p. 186.

11. Akyurek, Ozel Hayat, p. 192.

12. Akyurek, Ozel Hayat, p. 193 "In the incident where it is alleged that the defendants made friends with the victim and disclosed them by recording the naked photos of the victim, which he sent with his consent, on a flash disk and giving them to his father Mehmet; Since the naked images of the victim regarding sexual and physical privacy cannot be evaluated within the scope of personal data, the action will not constitute the crime of recording personal data, but the crimes of privacy in TPC 134...." 12th Criminal Chamber of the Supreme Court 19.01.2015 11530/584.

13. Supreme Court Criminal General Assembly 17.06.2014 1510/331.

14. 14th Criminal Chamber of the Supreme Court, 11.10.2017, 9227/4650.

15. Eker Kazanci p. 151.

16. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 722.

17. Eker Kazanci, p. 149.

18. Eker Kazanci, p. 150.

19. Eker Kazanci, p. 150.

20. 12th Criminal Chamber of the Supreme Court, 24.11.2014, 7518/23588.

21. Eker Kazanci p. 154.

22. Eker Kazanci p. 154.

23. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 723.

24. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 723.

25. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 724.

26. 12th Criminal Chamber of the Supreme Court 13117/14791.

27. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 726.

28. Eker Kazancı p. 155

29. 9th Criminal Chamber of the Supreme Court 09.11.2016, 9893/12504.

30. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 728.

31. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 728.

32. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 728.

33. Tezcan, Erdem, Theoretical and Practical Criminal Law, p. 729.

34. 8th Criminal Chamber of the Supreme Court, 29.09.2014, 1714/18859.

35. OGUZMAN, OZ p. 317.

36. 2nd Civil Chamber of the Supreme Court File Number: 2020/2346 Decision Number: 2020/3302.

37. Kunter vd., ibid, p. 1354.

38. Unver ve Hakeri, ibid, p. 433.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.