Article 286 of the Turkish Penal Code No. 5237 defines the unauthorized recording or transmission of audio or images during investigation and prosecution proceedings as a crime. This crime is becoming more common with the advancement of technology and may pose a threat to both the privacy of private life, the right to a fair trial and the presumption of innocence. This article, directly related to Article 183 of the Criminal Procedure Code No. 5271, assists in banning the use of devices that enable audio or images recording or transmission within the courthouse and in the courtroom after the hearing has started. In the study, the purposes and limits of the principle of publicity, which is an important element of procedural law, will be explained. Then, the crime defined in Article 286 of the Turkish Penal Code within the scope of freedom of the press and whether it falls within the limits of this freedom and publicity will be evaluated. An examination will be conducted regarding the legal value aimed to be protected, the perpetrator, victim, subject of the crime, typical act that constitutes the crime, moral element, the reasons for compliance with the law, attempt, participation and association, and finally the issue of prosecution and sanction will be touched upon defined in Article 286 of the Turkish Penal Code.
The crime of “recording audio or visuals” is stated as a single-paragraph crime under the title of “Crimes Against the Courthouse” in the Second Chapter of the Turkish Penal Code (TPC) No. 5237. This crime is linked to the principle of publicity and freedom of the press, which ensures that trials are held publicly. The principle of publicity is fundamental in proceedings. There are exceptions to this principle in some articles of the Criminal Procedure Code No. 5237, and these exceptions do not constitute a violation of publicity. When considered from the perspective of freedom of the press, it cannot be said that the exceptions to the principle of publicity limit the freedom of the press, because members of the press will be able to learn information after the hearing and share them with the public through news. In this study, the situation in some countries also is discussed and whether there were similar practices in this regard was also examined.
The important part in terms of the subject of the study is the situations in which the actions stated in Article 286 of the TPC are carried out. According to the article, “Any person who unauthorizedly records or transmits audio or visuals during investigation and prosecution proceedings…” will be punished. Therefore, the main question is who will be punished for this crime if they perform which actions in case of unauthorized recording of audio and visuals on the basis of investigation and prose- cution procedures. It has been determined that there are many problems in the wording of the article. Even though it is a crime that is short and consists of a single paragraph, there are many issues that require comment. In the article, the crime type is examined by dividing it into elements within the framework of the examination method, and it was aimed to identify the problems in these covering and to propose solutions.
First of all, the legal value protected by crime was examined. It has been determined that the aim is to protect more than one legal value, such as protecting the presumption of innocence, preventing the weakening of the defense, and ensuring the regular functioning of the courthouse by ensuring peace inside the courthouse and in the courtrooms. Anyone can be the perpetrator of the crime. The issue of victim is discussed in the doctrine. However, when the legal value intended to be protected by crime is considered, it has been determined that the victim may vary depending on the nature of the action and the concrete event. The material subject of the crime is the audio or visuals recorded or transmitted without authorization during investigation and prosecution proceedings. The typical action is to record or transmit these audio or visuals. Here, in terms of the typical action, the problem arises from the article. The text of the article, which gives the meaning that the recording or transfer process that constitutes the crime should be done both during the investigation and prosecution procedures, has been criticized in the doctrine and it is stated that appropriate regulation and changes should be made in this regard. Within the scope of legality reasons, it is mentioned that in order for the act to be lawful, the perpetrator must carry out the registration and transfer process in an authorized manner. This situation can be presumed to a point, but the issue that is criticized is that not every action taken within the scope of authority may also be lawful. When examining the moral element, it is a crime that can be committed with general intent. It is possible to make an evaluation in accordance with general provisions in attempt, participation and association. In terms of the combination of crimes, it is a compound crime and, although there are different opinions in the doctrine, it has been widely accepted that it is not possible to form an conceptual aggregation. This crime is not subject to complaint. Therefore, an investigation is carried out ex officio by the Public Prosecutor’s Office and the competent court is the criminal courts of first instance.
The crime not only aims to protect the courthouse, but also the individual. Since individual and public interests are considered more qualified and superior, it may result in the freedom of the press being restricted in accordance with the law. The Constitution of the Turkish Republic allows this restriction. This crime, which constitutes an exception to the principle of publicity, is important not only in criminal proceedings but also in civil proceedings. It can be said that the text should be re-viewed again, especially since some problems have been identified regarding the inditement of the article and these problems may both contradict the purpose of the article and lead to different applications. Otherwise, many principles of judgment, including the principle of legality, may be damaged, which is an undesirable outcome.
recording audio or visuals crimes against the judiciary principle of publicity freedom of the press criminal procedure
