|The Constitutional Court Decision dated 07.09.2021 and numbered 2018/30296 published in the Official Gazette dated 14.10.2021 and numbered 31628 (“Decision”) pertains to an applicant’s claim that her right to request the protection of personal data within the scope of the right to respect for privacy has been violated. The claims of the applicant (“Applicant”) within the scope of the Decision are as follows:
- Personal data such as communication, message records, e-government and banking passwords on the mobile phone of the Applicant being accessed through spyware installed without the Applicant’s consent and knowledge,
- Within the scope of the Applicant’s spouse presenting the said data as evidence before the divorce case despite the Applicant’s request, no research being conducted during the investigation and prosecution regarding which data were accessed by the spouse and between which dates,
- The justification of the Court of Instance that spouses accessing information about the other spouse not being protected under Article 20 of the Constitution.
The Applicant, within the frame of such allegations requested that since the use of personal data obtained without consent in the divorce case will not make the spouse’s act comply with the law, it should be rendered that the right to respect for privacy and freedom of communication has been violated.
Criminal proceedings were carried out by Ezine Criminal Court of First Instance upon the request of the Applicant regarding the spouse being charged for the crimes of violating the confidentiality of communication and privacy of the Applicant, and the spouse was acquitted. Bursa Regional Court of Justice, acting as the appeal court, decided to affirm the Ezine Criminal Court’s decision. Thus, the Applicant filed an individual application before the Constitutional Court.
As a result of its evaluation based on the national and international legislation, the Constitutional Court decided that:
- Article 20/3 of the Constitution secures the right to request the protection of the personal data for all individuals; considering the wording of the article, it provides assurance against all kinds of interventions and limitations on personal data within the scope of the right to request the protection of personal data; this constitutional guarantee corresponds to the right to respect privacy protected under Article 8 of the European Convention on Human Rights; considering the related international documents and comparative law and in light of the relevant provision of the Constitution, all the information about a specific or identifiable real person should be considered as personal data,
- In the concrete case, the essence of the Applicant’s complaint is that the unlawful access to the information contained in the Applicant’s phone, and therefore the Applicant’s personal data should be evaluated in terms of the right to protection of personal data within the scope of the right to respect privacy in line with the allegation that the obligation to establish an effective judicial system is not complied with regards to the criminal complaint,
- Within the scope of the protection of privacy, the government has a positive obligation to protect all individuals within its jurisdiction against risks that may arise from the actions of both public authorities and other individuals, as well as the person himself/herself in terms of the right to request the protection of personal data; in this sense, the state should fulfil its obligation to establish an effective judicial system and to use appropriate tools for the resolution of disputes,
- It is clear that the information on the applicant’s phone serves as personal data and that illegally obtaining and disclosing such personal data is regulated as a crime under the applicable legislation, in this regard an effective criminal investigation clarifying all aspects of the incident should be carried out and the conclusion reached relating to the incident should be stated with specific reasoning relating to the facts by considering the Applicant’s complaints,
- The Ezine Criminal Court in its justification stated that the accused acted in order not to lose the evidence and that the data obtained were only used as evidence in the divorce case, thus no research was done on (i) which personal data of the Applicant were obtained and (ii) whether changes were made to these data or not, (iii) how long the data were accessed and (iv) the court of instance did not evaluate whether the method, scope and purpose of obtaining personal data accessed is legitimate or not, by installing a software program on the Applicant’s phone, which is an important element of the Applicant’s privacy,
- Due to these facts, it is not possible to state that the reasoning of the court of instance is relevant and sufficient to protect the Applicant’s right to personal data protection,
- A fundamental right of the Applicant to demand the protection of personal data within the scope of the right to respect for privacy has been violated due to a court decision within the scope of an individual application, and the Decision should be sent to the relevant court for a retrial for the elimination of the violation and its consequences.
You may reach the full Turkish text of the Decision via the link below: