Definition
The Crime of Violating the Confidentiality of Communication is regulated in Article 132 of the Turkish Penal Code, under the section titled “Crimes Against Individuals” in the second part, and in the ninth chapter titled “Crimes Against Private Life and the Secret Area of Life.”
Article 132 – Anyone who violates the confidentiality of communication between individuals shall be punished with imprisonment from one year to three years. If the violation of confidentiality occurs through recording the content of communication, the penalty shall be increased by one fold.
Anyone who unlawfully discloses the content of communication between individuals shall be punished with imprisonment from two years to five years.
Anyone who unlawfully discloses the content of communication made with them to the public without the consent of the other party shall be punished with imprisonment from one year to three years. If the disclosed data is published through the press or media, the same penalty shall be imposed.
The crime in question is committed by learning the content of communication between specific individuals. The manner in which the communication is made does not affect the formation of the crime. This communication can be made through letters, phone calls, telegrams, or emails, for example. What is important for this crime is that the communication is made between specific individuals. A person who is not a party to this communication can commit this crime.
Is the Crime of Violating the Confidentiality of Communication Subject to Complaint and Conciliation?
The Crime of Violating the Confidentiality of Communication is among the crimes that require a complaint. According to Article 73 of the Turkish Penal Code, the person with the right to file a complaint must do so within 6 months from the day they knew or learned of the act and the identity of the perpetrator. If the person authorized to file a complaint does not do so within six months, no investigation or prosecution can be initiated. Additionally, the Crime of Violating the Confidentiality of Communication is also subject to conciliation.
Can the Crime of Violating the Confidentiality of Communication be Committed by Negligence?
The Crime of Violating the Confidentiality of Communication can be committed intentionally. Since the law does not prescribe a penalty in the case of negligence, if it is committed negligently, the perpetrator will not be punished. The person must intentionally attempt to learn the content of the communication. If they did not intentionally try to learn it, the mental element of the crime is not present, and they will not be punished.
The Simple Form of the Crime
The violation of the confidentiality of communication by merely listening or reading constitutes the basic form of this crime. According to Article 132/1 of the Turkish Penal Code (TCK):
“Anyone who violates the confidentiality of communication between individuals shall be punished with imprisonment from one to three years.”
A person who commits this crime by using communication made with them will be punished in the same way. Indeed, Article 132/3 of the TCK states as follows:
“Anyone who publicly discloses the content of communications made with them without the consent of the other party, in violation of the law, shall be punished with imprisonment from one to three years.”
Regarding the disclosure of these data, Article 132/3 of the TCK continues with the same penalty:
“If these disclosed data are published through the press or media, the same penalty shall be imposed.”
Circumstances That Require a Greater Penalty
The violation of the confidentiality of communication through the recording of communication content, such as what was said or written, is defined as the aggravated form of this crime. For example, if phone conversations are recorded using a voice recorder, the aggravated form of the crime is committed. According to Article 132/1 of the Turkish Penal Code (TCK):
“If this violation of confidentiality occurs by recording the communication content, the penalty to be imposed shall be increased by one fold.”
Additionally, according to Article 132/2 of the TCK:
“Anyone who unlawfully discloses the content of communication between individuals shall be punished with imprisonment from two to five years.”
Circumstances That Require a Lesser Penalty
It is considered lawful for the content of communication between individuals to be learned or recorded within the scope of an investigation into a specific crime, provided that the conditions established by the Constitution and laws are met. In cases where communication content can be listened to, read, and recorded without the individual’s knowledge and consent but in accordance with the law, no crime is considered to have been committed solely by the acts of listening, reading, or recording. However, some of this content may later be included in the investigation file, making it available to the subjects of the investigation and, after the indictment is accepted, publicly accessible. In such cases, the crime defined in the second paragraph of Article 132 will not occur. The current text of the second paragraph of the article considers the unlawful disclosure of communication content as a crime.
Effective Remorse
In accordance with the principle of legality, effective remorse can only be applied to the types of crimes for which it is specifically regulated. The provisions for effective remorse regarding the crime of violation of the confidentiality of communication are not included in the Turkish Penal Code. Therefore, the provisions of effective remorse will not apply to this type of crime.
Attempt
The crime of violation of the confidentiality of communication is a crime that is susceptible to attempt. For example, if a person is caught trying to record a conversation between two individuals, they have attempted to commit the crime. In this case, the person will be punished according to Article 35 of the Turkish Penal Code, which deals with attempts.
Article 35 – If a person starts to directly commit a crime they intended to commit with suitable actions, but is unable to complete it due to reasons beyond their control, they shall be held responsible for attempt.
In the case of an attempt to commit a crime, the offender shall be punished with a prison sentence ranging from thirteen years to twenty years instead of aggravated life imprisonment, and with a prison sentence ranging from nine years to fifteen years instead of life imprisonment, depending on the severity of the harm or danger caused. In other cases, the sentence to be imposed may be reduced by one-quarter to three-quarters.
Execution Regime of the Crime of Violation of the Confidentiality of Communications
As stated in Article 132 of the Turkish Penal Code, the commission of the crime of violating the confidentiality of communications results in a prison sentence. In crimes committed intentionally, for offenses under one year, the sentence may be converted into a judicial fine. Therefore, if a reduction in the penalty is made, the sentence for the crime of violating the confidentiality of communications can be converted into a judicial fine.
Conditions for Postponement of the Announcement of the Judgment (HAGB):
To decide on the postponement of the announcement of the judgment, the following conditions must be met:
a) The defendant has not previously been convicted of an intentional crime.
b) The court must be convinced, based on the defendant’s personal characteristics and conduct during the trial, that the defendant will not commit another crime.
c) The damage caused to the victim or the public by the commission of the crime must be fully remedied either by restitution, restoration to the previous state, or compensation.
d) The defendant must agree to the postponement of the announcement of the judgment.
For HAGB to be granted, the sentence imposed must be a prison sentence of two years or less. A decision on the postponement of the announcement of the judgment can be made for the crime of violation of the confidentiality of communications. However, with the Constitutional Court’s ruling on 01/08/2023, the regulation regarding HAGB has been abolished, and this regulation will come into force on 01/08/2024. Until the effective date, the conditions for HAGB can still be applied, but starting from 01/08/2024, HAGB will no longer be applicable.
A person who is sentenced to two years or less of imprisonment for a crime committed during the trial may have their sentence postponed (TCK.m.51). The upper limit of this period is three years for those who were under the age of eighteen or over the age of sixty-five at the time the crime was committed.
In order for a deferral decision to be made, the person must:
- The person must not have been sentenced to more than three months of imprisonment for an intentional crime in the past.
- It is necessary for the court to form an opinion that the person will not commit a crime again, due to the remorse shown during the legal proceedings after committing the crime.
The institution of suspension of the sentence can be applied in relation to the crime of violating the confidentiality of communication.
Relevant Court of Cassation Rulings
In the case where the defendant … is accused of committing the crimes of blocking, destroying, or modifying the system under Article 244/2 and violating the confidentiality of communication under Article 132/1 of the Turkish Penal Code (TCK) by secretly installing spyware on the mobile phone of the complainant … (the official wife of the defendant) because the defendant suspected her loyalty and believed she was cheating, and then using the program to record phone conversations she had with other people in order to provide evidence for his claims in a divorce case:
In the event that no claim is made regarding the defendant’s sharing or distributing of the communication content he is a part of with third parties or reproducing it, and considering that the defendant, while facing an unjust attack that harmed his dignity and unable to prove the situation otherwise, took actions to preserve evidence that might be lost and presented it in a divorce case, intending to prove that the source of the marital discord was the complainant’s trust-breaking and negative behaviors, it has been determined that the defendant did not act with the awareness of violating the law. Therefore, the local court’s decision to acquit the defendant according to Article 223/2-a of the Criminal Procedure Code (CMK), based on the evidence, does not appear to be erroneous.
“After the trial was conducted in compliance with the annulment ruling, and upon the grounds presented by the court that the acts charged were not defined as crimes in the law, the appeal claims regarding the incomplete examination, and the need for the defendant to be punished due to the established fact that the defendant committed the charged offenses were rejected, and the acquittal ruling was upheld as requested. The decision was made unanimously on December 21, 2022.” (Court of Cassation, 12th Criminal Chamber, 2022/4041 E., 2022/10256 K., 21.12.2022)
“In the case where the defendant … was the school principal and the complainant … worked as a staff member in the institution, the complainant filed a lawsuit against the institution to collect overtime pay, weekly rest pay, and public holiday pay. The institution’s lawyer submitted the transcript of the phone conversation between the defendant and the complainant, dated 11.12.2014, as evidence in the case file seen under the 26th … Court’s case file number 2014/463. Based on this, a public case was opened against the defendant for the crime of violating the confidentiality of communication under Article 132/3 of the Turkish Penal Code (TCK) in relation to the recorded phone conversations:
The owner of the company that set up the phone conversation recording system in the educational institution in 2011, witness E., testified under oath that a warning message was received before the phone conversations were recorded. There was also a document in the file showing that the complainant signed a written notice stating that all phone conversations made through the switchboard were recorded during their period of employment. This document, containing the complainant’s name and signature, was confirmed by the complainant, who also stated, “I worked for 4 years, and I knew that phone conversations were being recorded.” Additionally, no evidence was found showing that the communication content, which only involved the defendant and the complainant, was publicly disclosed unlawfully in a manner that would violate the privacy of the complainant’s personal life regarding the process of leaving the job. Therefore, due to the lack of legal elements constituting the offense of violation of communication confidentiality, the defendant was acquitted in accordance with Article 223/2-a of the Criminal Procedure Code (CMK), and the local court’s ruling was upheld based on the case file.
After the trial, the appeal objections regarding the unreasonableness of the acquittal decision, based on the reasoning that the act charged was not defined as a crime in the law and the incomplete examination, were rejected. The acquittal decision was upheld as requested. The decision was made unanimously on November 9, 2022.” (Court of Cassation, 12th Criminal Chamber, 2020/1021 E., 2022/8223 K., 09.11.2022)
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