ARTICLE 133 OF THE TURKISH PENAL CODE: LISTENING TO AND RECORDING OF PRIVATE CONVERSATIONS: SUPREME COURT DECISIONS AND PENALTIES

ARTICLE 133 OF THE TURKISH PENAL CODE: LISTENING TO AND RECORDING OF PRIVATE CONVERSATIONS

ENTRANCE

Listening to and recording private conversations constitutes a violation of individuals' privacy and freedom of communication. With the advancement of technology, the need to prevent and punish such violations has become even more important. Article 133 of the Turkish Penal Code defines such acts as crimes and prescribes criminal sanctions. This article will examine in detail the crime of listening to and recording private conversations as assessed under Article 133 of the Turkish Penal Code.

The provision of Article 133 of the Turkish Penal Code

Article 133 of the Turkish Penal Code is structured as follows:

1. Anyone who listens to or records private conversations between individuals using a device without the consent of either party shall be punished with imprisonment for two to five years.
2. Anyone who records a private conversation they are participating in using a voice recording device without the consent of the other speakers shall be punished with imprisonment from six months to two years or a fine.
3. (Amended: 2/7/2012-6352/80 art.) A person who unlawfully discloses data obtained by recording private conversations between individuals shall be punished with imprisonment from two to five years and a judicial fine of up to four thousand days. The same penalty shall be imposed if these disclosed data are published through the press and media.

ELEMENTS OF THE CRIME

PERPETRATOR AND VICTIM

The perpetrator of this crime can be any person who unlawfully listens to, records, or discloses private conversations. The victim is the person whose conversation is listened to, recorded, or disclosed. These individuals are parties to the conversation and become victims due to these actions taken without their consent.

VERB

This crime can be committed in three ways:

1. Eavesdropping: Listening to private conversations between individuals without the consent of one of the parties.
2. Recording: The act of recording private conversations between individuals using a voice recording device without the consent of one of the parties.
3. Disclosure: The unlawful disclosure of data obtained by recording private conversations between individuals.

ILLEGALITY

For a crime to occur, the act must be unlawful. Listening to, recording, or disclosing conversations between individuals must be done without the consent of the victims and in an unlawful manner. For example, recording a conversation without the consent of one of the parties involved is unlawful.

CASTE

The crimes defined in Article 133 of the Turkish Penal Code are crimes that can only be committed intentionally. The perpetrator must knowingly and willingly carry out the act of listening to, recording, or disclosing private conversations.

AGGRAVATED FORM OF THE CRIME

Article 133 of the Turkish Penal Code also regulates certain aggravated forms of the crime. These aggravated forms are situations that require a more severe punishment for the crime:

1. RECORDING OF CONVERSATIONS: The penalty is increased if data obtained by recording private conversations between individuals is unlawfully disclosed.
2. DISCLOSURE: The penalty is increased if the disclosure of private conversations between individuals damages their honor and reputation.

IMPORTANCE AND PLACE IN PRACTICE

Article 133 of the Turkish Penal Code aims to protect individuals' private lives and freedom of communication. The regulation of this crime is of great importance, especially in an era where technological advancements are increasing threats to the confidentiality of interpersonal conversations. Therefore, individuals need to be aware of their privacy violations and know their legal rights.

CASE STUDIES AND JUDICIAL DECISIONS

SUPREME COURT OF APPEALS, 12TH CRIMINAL DIVISION Date: 15.01.2020
Case No: 2019/701
Decision No: 2020/518

Case Law Text:

Court: Primary Criminal Court
Crimes:

1. Regarding the defendant…: Listening to and recording conversations between individuals
2. Regarding the defendant…: Incitement to the crime of listening to and recording conversations between individuals, and listening to and recording conversations between individuals.
   Verdicts: Acquittal pursuant to Article 223/2-a of the Code of Criminal Procedure.

The judgments regarding the acquittal of defendants Yasemin and Hasan on charges of listening to and recording conversations between individuals, and of defendant … on charges of instigating the crime of listening to and recording conversations between individuals, were appealed by the plaintiffs' attorney; the file was examined and the necessary considerations were made:

According to Articles 28 of the Supreme Court Law and 37 of the Supreme Court Internal Regulations, when appealing decisions rendered by local courts, the Supreme Court Chief Public Prosecutor's Office is required to issue a notification stating its legal opinion on the matter. Since the notification issued by the Supreme Court Chief Public Prosecutor's Office does not include an opinion regarding the appeal filed by the plaintiffs' attorney against the acquittal judgments rendered against the defendant… for the crimes of incitement to listen to and record conversations between individuals, allegedly committed on August 17, 2013, and August 24, 2013, allegedly committed on the same date; it was unanimously decided on January 15, 2020, to forward the file to the Supreme Court Chief Public Prosecutor's Office for examination, to provide an opinion on this matter, and to send it along with an additional notification

This decision demonstrates how the crimes of eavesdropping and recording private conversations are assessed and handled by the judiciary. In particular, the detailed examination of incitement to commit these crimes and the acts of eavesdropping/recording underscores the importance of judicial processes.

CONCLUSION

Article 133 of the Turkish Penal Code aims to protect individuals' right to privacy and freedom of communication by regulating actions that violate the confidentiality of interpersonal conversations. This provision acts as a deterrent against violations of confidentiality in personal conversations, protecting individuals' rights to their private lives and freedom of communication. Therefore, it is of great importance for lawyers and individuals to have a good understanding of the content and application areas of Article 133 of the Turkish Penal Code and to act accordingly.

Law Student Intern

Osman Recep Gülşen