The crime of violation of privacy of private life, by definition, refers to the interference with an individual’s private life, which they wish to keep confidential or do not want to share with everyone. The privacy of private life is a legally protected value aimed at ensuring that individuals, as social beings, can live in peace and security within society. The primary purpose of legally safeguarding this value is to protect individuals from interferences with their private lives. This crime has the nature of a general norm and should not be confused with the similar offenses listed below, which have the nature of special norms.
- The offense of recording personal data,
- Crime of Obtaining, Disseminating, or Transferring Personal Data
- Crime of Violation of the Confidentiality of Communication
- Cyber Crimes
This type of crime is regulated under Article 134 of the Turkish Penal Code, and its perpetrator can be anyone, while its victim can be any individual. The crime of violation of privacy of private life is regulated under the section “Crimes Against Private Life and the Confidentiality of Life” in the Turkish Penal Code.
TCK 134/1 states: “Anyone who violates the privacy of another person’s private life shall be sentenced to imprisonment from one to three years. If the violation occurs through the recording of images or sounds, the penalty shall be increased by one fold.”
TCK 134/2 further states: “Anyone who unlawfully discloses images or sounds related to another person’s private life shall be sentenced to imprisonment from two to five years. The same penalty shall apply if these disclosed materials are published through the press or other media channels.”
In Article 134 of the Turkish Penal Code, the basic form of the crime of violation of privacy of private life is defined as the violation of privacy through the recording of images or sounds. The aggravated form of this crime, which constitutes its qualified version, occurs when images or sounds related to a person’s private life are disclosed.
The concept of private life referred to in the law does not only cover an individual’s secluded life behind closed doors, away from prying eyes, or aspects of their life that they do not share with others. It also includes all personal events and information that are not known or should not be known by everyone but can be disclosed to others at the individual’s discretion. Therefore, it cannot be assumed that a person has implicitly accepted being monitored or recorded in public spaces during activities such as eating, drinking, traveling, or socializing with others, nor that they have consented to the capture of images or sounds related to such activities.
The crime of violation of privacy of private life may also occur when individuals intrude into another person’s private space and record, capture, or disclose an event of private life that would otherwise not be visible to others.
In cases where one party voluntarily shares sexually explicit conversations, photos, or videos during online or social media communications, and the other party records these materials, the crime of violation of privacy does not occur. However, if the recorded audio or visual content is shared with third parties, this act constitutes the crime of disclosure of private life under Article 134/2 of the Turkish Penal Code.
Dependency of the Crime on a Complaint
According to Article 139 of the Turkish Penal Code, all forms of the crime of violation of privacy are subject to a complaint. In other words, unless the victim files a complaint, the Public Prosecutor cannot initiate an investigation ex officio, and accordingly, the court cannot proceed with prosecution.
Applicability of Mediation
The crime of violation of privacy is classified as a crime subject to mediation under the Turkish Penal Code. In crimes subject to mediation, the mediation procedure must be applied first during both the investigation and prosecution stages. If an agreement is not reached through mediation, the investigation or prosecution will continue.
The Crime of Violation of Privacy of Private Life in Terms of Its Commission
The crime of violation of privacy of private life can only be committed intentionally, and general intent is sufficient for its commission. This crime can be committed with either probable intent or direct intent. It is sufficient for the perpetrator to be aware of and desire the interference with another person’s private life for the crime to be established.
Since the acts constituting the crime of violation of privacy are divisible, the provisions on the attempt to commit a crime may be applicable to this offense.
Aggravated and Mitigated Forms of the Crime of Violation of Privacy of Private Life
According to Article 134/1 of the Turkish Penal Code (TCK), “if the violation of privacy occurs through the recording of images or sounds, the imposed penalty shall be increased by one fold.” This provision introduces an aggravated form of the crime by increasing the penalty.
Furthermore, if this crime is committed by a public official through the misuse of their position or by utilizing the opportunities provided by a specific profession or occupation, the penalty shall be increased by half.
The qualified form of this crime occurs when the obtained images or audio recordings are disclosed. According to Article 134/2 of the TCK, “anyone who unlawfully discloses images or sounds related to another person’s private life shall be sentenced to imprisonment from two to five years. If these disclosed materials are published through the press or other media, the same penalty shall apply.”
The Institution of Effective Remorse
The institution of effective remorse is not regulated for every type of crime in the law; it is only applicable to crimes for which a specific provision exists. There is no provision for effective remorse regarding the crime of violation of privacy of private life.
The Execution Regime of the Crime
In the crime of violation of privacy of private life, the competent court is the Criminal Court of First Instance, and the court with jurisdiction is the court where the crime was committed.
According to Article 134/1 of the Turkish Penal Code, anyone who violates the privacy of another person’s private life shall be sentenced to imprisonment from one to three years.
According to Article 134 of the Turkish Penal Code, anyone who unlawfully discloses images or sounds related to another person’s private life shall be sentenced to imprisonment from two to five years.
The statute of limitations for filing a complaint in the crime of violation of privacy of private life is six months, starting from the date the victim learns of the act and the identity of the perpetrator.
Under the Turkish Penal Code, judicial fines are imposed for prison sentences of one year or less, and they represent the conversion of a prison sentence into a monetary fine. The prison sentence for the crime of violation of privacy of private life can, under certain conditions, be converted into a judicial fine.
The decision to postpone the announcement of the verdict, as regulated in the Turkish Penal Code, is applied for prison sentences of two years or less. If no harm is caused to public institutions or organizations, the decision to postpone the announcement of the verdict may be given based on the amount of the prison sentence. A decision to postpone the announcement of the verdict (HAGB) can be made for the sentence imposed for the crime of violation of privacy of private life.
However, with the decision of the Constitutional Court dated 01/08/2023, the regulation regarding the postponement of the announcement of the verdict (HAGB) has been annulled, and this regulation will be applied starting from 01/08/2024. Until the effective date, the provisions of HAGB can still be applied if the conditions are met, but starting from the effective date (01/08/2024), the application of HAGB will no longer be possible.
According to the Turkish Penal Code, the decision to suspend a prison sentence is a conditional decision to waive the execution of the sentence in prison. It is also possible for the prison sentence imposed for the crime of violation of privacy of private life to be suspended.
According to the Law on the Execution of Sentences and Security Measures No. 5275, for crimes committed after 30.03.2020, in order for a convicted person to benefit from probation, they must be in an open prison facility or have earned the right to be transferred to such a facility, and they must be in good standing. The crime of violation of privacy of private life is a type of crime suitable for probation. It is stipulated that probation will be applied for those who have 1 year or less remaining in their conditional release period. With the amendment made to the law No. 5275 on 30/03/2020, the conditional release rate for the crime of abuse of trust, which was not classified as an exceptional crime, was reduced from 2/3 to 1/2. The probation period for crimes committed before 30/03/2020 is set to 3 years, while for crimes committed after this date, it is set to 1 year.
If the crime of abuse of trust is committed after 30/03/2020, the release rate will be applied as 1/2, and the probation period will be 1 year.
Examples of Court of Cassation Decisions on the Crime of Violation of Privacy of Private Life
- The Principle of Privacy of Private Life Not Being Abolished Even in the Case of Marriage
Privacy is not just limited to a person’s life hidden behind closed doors, away from the eyes of others, in a private space where they do not share it with anyone, but also includes all events and information that are personal to the individual, which others do not know or should not know, and which can be disclosed to others at the person’s discretion. Therefore, being in a public space does not imply consent to the listening, watching, recording, or continuous and unauthorized possession of every image or sound in that space. Even when in a public space, the principle of “remaining unnoticed, being unrecognized, and being unknown in the crowd” applies. The information obtained through continuous monitoring and surveillance of a person in a public space, such as what they do during the day, where they go, who they meet with, why, how, when, and where they meet, or any activities that involve their entry into their private life, is within the scope of private life, provided that the person does not wish for these to be seen or known by others. However, events and information that are not continuous or do not fall under the private domain cannot be considered under this concept.
In conclusion, when determining whether an event or piece of information falls under the concept of private life, factors such as the person’s position in society, profession, occupation, whether they are recognized by the public, their outward behavior, consent and expectations, the characteristics of the physical environment they are in, their social relations, and the degree of intervention should be taken into account.
The right to privacy of private life, which is personal and related to an individual’s personal development, does not completely disappear with marriage. The fact that the parties are married and share the same household does not mean that they have easy access to each other’s personal belongings and private life matters, nor does it imply that spouses can constantly monitor and supervise each other without any boundaries. However, in sudden situations where the person has no opportunity to obtain further evidence and cannot apply to the competent authorities, such as when a crime (such as sexual assault, insult, threat, defamation, or blackmail) is being committed against them, or when there is a wrongful attack on their dignity or family unit, in order to prevent the loss of potential evidence and secure it by submitting it to the competent authorities, it is not possible to consider actions such as reading, listening to, or recording private information, communication contents, or personal data, or listening to, watching, or recording audio and visual content related to private life without the knowledge and consent of the party committing the attack as unlawful. Moreover, in such cases, it cannot be said that the person is acting with awareness of unlawfulness.
In light of these explanations, based on the file examined, it was found that the complainant, who suspected that the defendant, whose legal spouse had been living separately for 7 months and was in the process of divorce, was aware of the complainant’s whereabouts and activities, noticed that a recording device and a GPS system had been installed under the glove compartment of the car registered in the name of the complainant’s sister’s husband, and which the complainant claimed to own and use due to the credit debt being paid by him. Upon the complainant’s report, a judicial investigation was initiated. In the statement taken by the law enforcement officers from the defendant, the defendant claimed: “The vehicle with the license plate … belongs to me, and the vehicle registration was made under my brother-in-law’s name in order to benefit from the discount. The transport company I manage has agreements with fuel stations, and I installed a vehicle recognition system in this car so that it could benefit from these agreements. According to the company policy, vehicles with this system must also have a GPS device installed. When the issues between my wife and I started, and we reached the divorce stage, I requested the vehicle, which was mine, but my wife did not return it. I have no connection with the audio and video devices in the car, and I have no knowledge of who installed them or for what purpose.” Following this statement, the Karşıyaka Chief Public Prosecutor’s Office decided not to pursue the case, reasoning that “there is a dispute over the ownership of the vehicle with license plate … between the complainant and the defendant, and it has been understood that their marriage is still ongoing; therefore, privacy cannot be claimed during the process in which the complainant’s spouse is involved.”
However, it was found that there was a divorce case registered under the file number 2018/257 at the İzmir 14th Family Court between the defendant and the complainant, and it was also understood that the parties were living separately at the time of the alleged crime. Taking into account that the right to privacy does not completely disappear due to marriage, it was deemed necessary to include and examine the aforementioned divorce case in the investigation file. According to the report dated 14.06.2018, the vehicle with the license plate … was found to have a tracking device and recording equipment. By obtaining the vehicle’s registration record, it should be investigated who the vehicle belonged to, who used it before and after the alleged crime, and who installed the recording device and when. After all the evidence is evaluated together, the accuracy of the claims and defense should be clarified, and the defendant’s legal situation should be determined. However, it was found that the decision not to pursue the case, which was based on insufficient investigation and unlawful reasoning, should have been overturned, and instead, the appeal should have been accepted for the reasons outlined above. (Supreme Court, 12th Criminal Chamber, 2019/5170K.)
- Violation of Confidentiality through the Recording of Images or Sounds
In the case where the defendant recorded a phone conversation with the complainant X, with whom he had been in a romantic relationship for approximately five years, and sent the recording to X’s spouse via cargo without consent, the defendant did not disclose the content of their communication in a public setting that could be perceived by multiple people. Therefore, due to the failure to meet the legal elements of the offense defined in Article 132, paragraph 3 of the Turkish Penal Code (TCK), which concerns the violation of the confidentiality of communication, the defendant’s actions of sending a recording of a conversation containing private matters to the complainant’s husband should be considered under Article 134, paragraph 2 of the TCK. This provision addresses the violation of the confidentiality of private life through the disclosure of images or sounds. (Supreme Court, 12th Criminal Chamber, 2018/1900K.)
- Disclosure of Nude Images and Photos Recorded with Consent without Consent
The victim’s nude images and photos were recorded by the defendant. The act of recording the images does not constitute the crime of “recording personal data.” Since the recording of the images took place with the victim’s knowledge and consent, it does not constitute the violation of privacy as defined in Article 134/1 of the Turkish Penal Code. However, the act of sending the images, which were taken with the victim’s consent, to multiple institutions at different times without the victim’s consent constitutes the crime of violating the privacy of personal life, as defined in Article 134/2 of the Turkish Penal Code (Court of Cassation, 12th Criminal Chamber – 2012/18222K).
- The crime of violating the privacy of personal life by recording someone’s legs on public transportation.
In the incident where the defendant recorded the victim’s leg images under her skirt on the metro with his phone, after the witness noticed the defendant’s actions, the victim became aware of the situation and filed a complaint, leading to the defendant’s capture by the security officers,
It is understood that the defendant committed the crime of violating the privacy of the victim’s personal life by using his phone’s camera to record the victim’s legs, who was sitting across from him in the metro, a public transportation vehicle. Therefore, the defendant should have been convicted of the crime of violating the privacy of personal life, rather than being convicted of sexual harassment, as ruled by the court. This decision was found to be unlawful (Court of Cassation, 9th Criminal Chamber – 2023/2200 K.).
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