What is Electronic Evidence?
Definition and Scope
Electronic evidence refers to information or documents obtained from data created, stored and transmitted in a digital environment. These evidences are obtained from digital sources such as mobile phones, computers, social media accounts, messaging applications and emails.
Legal Nature
In Turkish law, electronic evidence is considered equivalent to written evidence. However, its validity is determined by evaluating factors such as the conditions under which the evidence was obtained, the way it was presented to the court, and the reliability of the information it contains.
Types of Evidence in Divorce Cases
Material Evidence
Tangible documents such as invoices, hotel records, and camera footage are considered as material evidence.
Witness Statements
Verbal statements submitted to the court by third parties who witnessed the events experienced by the parties play an important role in divorce cases.
Digital and Electronic Evidence
Digital content such as WhatsApp messages, social media screenshots, emails, audio and video recordings are used effectively, especially in proving allegations of deception, violence and insult.
The Place of Electronic Evidence in Turkish Law
Evaluation within the Scope of HMK and TMK
The Code of Civil Procedure (HMK) adopts the principle of freedom of evidence and leaves the door open to electronic evidence. According to the Turkish Civil Code (TMK), every claim put forward in divorce cases must be proven. For this reason, electronic evidence is one of the frequently used means of evidence.
The Principle of Freedom of Evidence
Courts have the authority to evaluate all kinds of evidence obtained lawfully. However, evidence obtained in violation of the right to privacy is often rejected.
Elements Accepted as Electronic Evidence
WhatsApp Correspondence
Correspondence between the parties can be presented to the court through screenshots or phone backups.
Social Media Posts
Content on platforms such as Instagram, Facebook, and Twitter can be used to prove issues such as a spouse's infidelity, lifestyle, or attitude towards the family.
Email and SMS Messages
Written communication, especially in business or private relationships, is a serious evidence in the divorce process. The identity of the sender and the timestamp are important.
Audio and Video Recordings
Records of conversations between the parties or moments of physical violence can be direct evidence in proving the grounds for divorce. However, these records must be obtained in accordance with the law.
Legality of Electronic Evidence
Method of Obtaining Evidence
Evidence is considered lawful if it is obtained by one of the parties with their explicit consent. Records obtained secretly or provided by third parties are generally not accepted by the court because they violate personal rights.
The Concept of Unlawful Evidence
According to the Constitution's principle of protecting the privacy of private life, electronic data obtained illegally cannot be used as evidence. This may negatively affect the course of the case.
How to Present Electronic Evidence as Evidence
Timestamp and Verification Process
When evidence was produced and who submitted it directly affects its validity. Therefore, the authenticity of evidence must be supported by timestamping and technical verification.
Uploading to UYAP and Submission to Court
Lawyers can submit electronic evidence to the court in PDF, JPEG or MP4 formats via the UYAP system. It is important to file screenshots, audio recordings or digital documents in a descriptive format.
The Role of Expert and Digital Analysis Reports
Evidence Requiring Technical Review
Evidence from audio recordings, videos, email servers or messaging applications requires technical analysis. In such cases, the court will examine the accuracy and immutability of the evidence by appointing an expert.
The Importance of Expert Opinions
Expert reports directly affect whether evidence will be accepted by the court. In particular, the determination of the security and originality of digital data is provided with expert support.
The Effect of Electronic Evidence on Reasons for Divorce
Cheating and Infidelity
Digital documents, such as a spouse’s text messages with another person, social media relationships, or hotel records, are effective in proving allegations of infidelity.
Violence, Insults and Threats
Voice recordings, threatening messages or images of the moment of violence play an important role in proving physical and psychological violence.
Smuggling and Financial Evidence
Digital data such as bank account transactions, money transfer records, invoices and POS documents can be presented as evidence in property division disputes.
Privacy and Balance of Evidence
Evaluation in the Context of the Constitution and KVKK
The process of collecting electronic evidence should not violate the privacy of the individual. The Personal Data Protection Law (KVKK) draws limits on this issue. In particular, if information belonging to third parties is obtained, the evidence becomes unlawful.
Court Discretion
Each case is evaluated according to its own circumstances. The court decides whether to accept or reject the evidence based on its legality and impact on the case.
Problems Encountered in Application and Solution Suggestions
Rejection of Evidence and Insufficiency of Evidence
Obtaining evidence that is incomplete, unclear or illegal will result in the evidence not being taken into consideration by the courts, which makes it difficult to prove the allegations during the divorce process.
Lawyer and Expert Support
The use of electronic evidence in the divorce process must be supported not only by technical knowledge but also by the right legal strategy. Therefore, the support of lawyers and IT experts is vital.
Supreme Court Decisions on Validity of Electronic Evidence
Accepted Samples
In the Supreme Court precedents, evidence obtained from spouses’ explicit consent or from shared living spaces has often been accepted. In particular, WhatsApp correspondence has been deemed valid if it was recorded on devices used together.
Rejected Samples
Digital documents containing hidden cameras, illegal audio recordings or third-party information have generally been deemed unlawful and invalidated by the Supreme Court.
The Impact of Developments in Technology on the Evidence System
Mobile Applications and Data Monitoring
Monitoring data collected through various mobile applications can become valuable evidence when recorded legally. However, collecting this data without permission can be a crime.
Use of Cloud-Based Documents
Documents stored on platforms such as Google Drive, iCloud, Dropbox can be valid evidence in court when presented with screenshots and download records.
Security and Storage Methods of Electronic Evidence
Chain of Evidence and Risk of Manipulation
For the validity of electronic evidence, its source, the medium in which it is stored and whether it has been altered must be documented. Any element that damages the chain of evidence puts validity at risk.
Storage in Safe Environments
It is recommended that evidence be preserved in its original form, time-stamped, in secure digital environments. Email systems, digital archiving software or notarized digital signatures can be used.
The Role and Strategies of Lawyers
Consultancy in the Evidence Collection Process
The lawyer determines which evidence is legal and directs the process accordingly. He determines the case strategy by warning his client about risky evidence.
Techniques of Presenting Evidence in Court
The presentation of evidence accompanied by understandable, chronological and technical explanations facilitates the judge's correct assessment. The lawyer organizes the uploading to the UYAP system and the hearing presentation processes.
Frequently Asked Questions
1. Are WhatsApp messages admissible as evidence?
Yes, if the correspondence between the parties is clearly recorded and not manipulated, it is considered valid.
2. Can a secretly recorded voice be considered evidence?
Generally no. However, in serious cases, such as threats of violence, there may be some exceptions.
3. Will a screenshot suffice in court?
Screenshots that have been verified as authentic may be accepted as evidence, but must be accompanied by supporting documentation due to the risk of manipulation.
4. Can social media posts be grounds for divorce?
Yes. Cheating, humiliating or sharing content that harms the family unit can be considered grounds for divorce.
5. Can I present evidence without a lawyer?
Yes, but legal assistance is recommended for the legality of the evidence and its effective presentation to the court.
6. How to increase the validity of digital evidence?
Evidence can be strengthened with supporting elements such as timestamps, source files instead of screen recordings, and witness statements.
Electronic Evidence Management Plan for the Divorce Process
Preliminary Evaluation
- The legal nature of the available evidence is analyzed.
- Unlawful evidence is eliminated
Collecting and Presenting Documents
- Original data is organized
- The chain of evidence is created
- Presentation to the court is made through official channels