The Crime of Listening to and Recording Conversations Between Individuals
The crime of Listening to and Recording Conversations Between Individuals is regulated under Article 133 of the Turkish Penal Code No. 5237:
“Any person who listens to non-public conversations between individuals by means of a device, or records them with an audio recording device without the consent of any of the parties, shall be sentenced to imprisonment from two to five years.
Any person who, without the consent of the other participants, records a non-public conversation in which he or she is participating by means of an audio recording device shall be sentenced to imprisonment from six months to two years or to a judicial fine.
Any person who unlawfully discloses data obtained through the recording of non-public conversations between individuals shall be sentenced to imprisonment from two to five years and to a judicial fine of up to four thousand days. If such disclosed data is published through the press or broadcasting, the same punishment shall be imposed.”
In this context, recording a conversation between two individuals does not constitute the crime of listening to and recording conversations between individuals; rather, it constitutes the crime of violation of the privacy of private life.
“Similarly, recordings other than speech — for example, visual recordings — do not constitute this crime but instead constitute the crime of violation of the privacy of private life.”
Elements of the Crime
When the crime of listening to and recording conversations between individuals is evaluated in terms of both its objective and subjective elements, it consists of the following fundamental components:
1.Act (Conduct Element): The crime of listening to and recording conversations between individuals, as regulated in Article 133 of the Turkish Penal Code, is an alternative (elective) crime. Accordingly,
2.Perpetrator: Under Article 133 of the Turkish Penal Code, there is no special condition required regarding the perpetrator of the crime; therefore, anyone may be the perpetrator.
3.Victim: In terms of this crime, any person may be the victim.
It may be committed in the following forms:
- Listening to non-public conversations between individuals by means of a device without the consent of any of the parties, or recording such conversations with an audio recording device,
- Recording a non-public conversation with an audio recording device without the consent of the other participants,
- Unlawfully disclosing data obtained through the recording of non-public conversations between individuals,
- Publishing the disclosed data through the press or other means of broadcasting.
4.Legally Protected Interest:
The crime of listening to and recording conversations between individuals is regulated under the section titled “Crimes Against Private Life and the Confidential Sphere of Life.” The legal interest protected by this type of crime is the privacy of private life.
5.Mental Element (Mens Rea):
This crime can only be committed intentionally; it cannot be committed by negligence under the law.
Is the Crime of Listening to and Recording Conversations Between Individuals Subject to Complaint?
The crime of listening to and recording conversations between individuals is subject to complaint, and a complaint must be filed within six months from the date on which the act and the perpetrator become known.
Is the Crime of Listening to and Recording Conversations Between Individuals Subject to Reconciliation?
The crime of listening to and recording conversations between individuals is subject to reconciliation.
Statute of Limitations
If a complaint is not filed within six months after the crime of listening to and recording conversations between individuals is discovered, it is not possible to investigate or prosecute the offense.
Suspension of Sentence
According to Article 51 of the Turkish Penal Code, “The sentence of a person sentenced to imprisonment for two years or less for a crime they committed may be suspended.” Accordingly, in the case of the relevant crime, if the imprisonment sentence is two years or less, a suspension of the sentence may be granted.
Judicial Fine
According to Article 50 of the Turkish Penal Code No. 5237, “A short-term imprisonment sentence may be converted into a judicial fine based on the offender’s personality, social and economic status, remorse shown during the trial process, and the characteristics of the offense.” Short-term imprisonment is also regulated under Article 49 of the TPC, which states: “An imprisonment sentence of one year or less is considered short-term imprisonment.”
The crime of listening to and recording conversations between individuals is regulated in three different ways under the Law. Accordingly:
A person who unlawfully discloses data obtained through the recording of non-public conversations between individuals is subject to a combined penalty of imprisonment and judicial fine. Since the imprisonment sentence is not short-term, it cannot be converted into a judicial fine.
A person who listens to non-public conversations between individuals by means of a device, or records them with an audio recording device without the consent of any of the parties, cannot have their imprisonment sentence converted into a judicial fine.
A person who records a non-public conversation in which they are participating, without the consent of the other participants, using an audio recording device, is subject to an alternative punishment; therefore, if imprisonment is imposed, it cannot be converted into a judicial fine.
Suspension of the Pronouncement of the Verdict (SPV)
If a person is sentenced to imprisonment for two years or less for the relevant crime, a suspension of the pronouncement of the verdict (SPV) may be granted. In order for an SPV decision to be made;
- The defendant must not have been previously convicted of an intentional crime.
- The court must be convinced, based on the defendant’s personality traits and behavior during the trial, that they will not commit another crime.
- 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.
Precedent Decisions
“Considering that the crime of listening to and recording conversations between individuals, attributed to the defendant, is subject to reconciliation under Article 253/1-a of the Criminal Procedure Code No. 5271, as amended by Article 24 of Law No. 5560, the nature of reconciliation and the legal consequences of accepting or rejecting it were explained to both the defendant and the complainant. After obtaining their statements in this regard, as required under Article 254/1 of the Criminal Procedure Code No. 5271, as amended by Article 25 of Law No. 5560, the failure to take into account the need to assess and determine the defendant’s legal situation necessitated the reversal of the decision.”
(Court of Cassation, 12th Criminal Chamber, 2013/15626 E., 2014/8990 K., 14.04.2014)
“According to the case file, the defendant’s defense, the complainant’s statement, and expert reports, the defendant worked as a construction project officer within the general management of a private bank, while the complainant worked as the head of the construction unit in the same department. The incident arose when the defendant secretly recorded, with a mobile phone, a non-public meeting held in the complainant’s office—attended also by assistant manager Eray—regarding the complainant’s performance evaluation of the defendant, and subsequently filed a complaint with the Public Prosecutor’s Office claiming that the complainant insulted him during the meeting.
In this context, it was established that: the defendant worked at the bank between 2003 and 2012; the complainant, who began working as a unit manager in 2009, had maintained a negative attitude toward the defendant from the start of her tenure; she allegedly sought to marginalize him as a former employee; had verbally insulted him in the workplace before; had behaved in humiliating and degrading ways in group settings; had unjustly initiated an investigation against him about a month prior; and on the day of the incident, during the performance evaluation meeting, he secretly recorded the conversation because the complainant allegedly made insulting remarks, claiming there was no other way to prove the act.
Based on the defendant’s defense and the expert report confirming it, it was determined that the defendant recorded the insulting remarks directed at him during the meeting under circumstances where no other proof was possible, and it was concluded that it cannot be accepted that the defendant’s act was unlawful. Therefore, the opinion in the notice recommending reversal was not adopted.
Although the reasoning stated that, since the perpetrator of the alleged crime must be a person who is not a party to the non-public conversation, the act attributed to the defendant was not defined as a crime under the law, and the defendant was acquitted, it was acknowledged that despite the incorrect reasoning, the ruling’s outcome was correct, and this did not constitute a ground for reversal.”
(Court of Cassation, 12th Criminal Chamber, 2013/26087 E., 2014/10205 K., 28.04.2014)
“On 31.10.2008, the defendant, together with the claimant, who was his employer, and a person named Esat, employed as an accountant at the workplace, secretly recorded the conversations between the three of them regarding the compensation claim arising from the termination of the employment contract by activating the camera function of his mobile phone in the claimant’s office, and submitted a CD created from the recording as evidence attached to the petition filed in the labor court against the claimant on 19.03.2009.”
According to the expert report on the CD in question and the content of the statements obtained, it was determined that the communication between the parties constituted a non-public conversation, which could only be overheard by others with special effort. The defendant, despite the absence of any sudden crime being committed against him by the claimant (such as sexual assault, insult, threat, defamation, or blackmail), acted not to preserve evidence that might be lost, but in a premeditated and planned manner to obtain new evidence, and by using the CD in the legal dispute to gain an advantage, caused the conversations contained in the CD to be learned by others.
“Regarding the act dated 31.10.2008, attributed to the defendant as recording a non-public conversation in which he participated, without the consent of the other speakers, under Article 133/2 of the Turkish Penal Code (TPC), it is noted that the investigation and prosecution of this offense are subject to complaint pursuant to Article 139/1 of the same Code. Although it was stated in the petition submitted to the Public Prosecutor’s Office by the claimant’s attorney on 16.07.2009 that the act and the perpetrator were learned on 31.03.2009, according to the expert report prepared during the investigation phase, the statements at the end of the recording—where the defendant says, ‘…recorded on the phone too…’ and the claimant replies, ‘…record as much as you want…’—show that the claimant became aware of the recording act and the perpetrator on 31.10.2008. Consequently, the complaint regarding the recording was filed after the six-month period prescribed in Article 73/1 of the TPC had expired. Considering that the file did not contain conditions requiring immediate acquittal under Article 223/9 of the Criminal Procedure Code (CPC), the court ruled that the case against the defendant for the crime under Article 133/2 of the TPC should be dismissed due to the absence of the complaint requirement, in accordance with Articles 139/1, 73/1 of the TPC and 223/8 of the CPC.
Furthermore, following the offense, with the amendment made by Article 80 of Law No. 6352, published in the Official Gazette on 05.07.2012, Article 133/3 of the TPC was amended to punish a person who unlawfully discloses data obtained by recording non-public conversations between individuals. Since the defendant disclosed data obtained from a non-public conversation in which he participated, the legal elements of the offense under Article 133/3 of the TPC and of the crime of violating privacy by disclosing images or sounds under Article 134/2 were not established. Therefore, under Article 223/2-a of the CPC, the defendant should have been acquitted for the offense under Article 133/3 of the TPC.
Despite the reversal decision of our Chamber dated 13.01.2014, the trial court failed to render a judgment under Article 133/2 of the TPC. Instead, all acts that were proven were considered under Article 133/3, and a conviction was issued based on the pre-amendment version of Article 133/3, without taking into account provisions favorable to the defendant and without a legal, sufficient, or valid justification. This is contrary to the law.
Accordingly, the defendant’s appeal was upheld, and the judgment was reversed pursuant to Article 321 of the former CPC No. 1412, currently in effect under Article 8 of Law No. 5320, by unanimous decision on 10.07.2019.”
(Court of Cassation, 12th Criminal Chamber, 2019/4368 E., 2019/8324 K., 10.07.2019)
Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
