The Constitutional Court Rendered a Decision on the Request of Annulment by the Mardin 2nd Administrative Court Which Concluded the Phrase of ‘‘To Make Inquiry’’ in the Paragraph 6 of Article 8 of the Law Adopting the Decree Law on Disciplinary Provisions for the General Law Enforcement is Contrary to the Constitution, in the Lawsuit Filed by a Person for the Cancellation of the Penalty of Dismissal on the Ground that the Unauthorized Inquiries of Personal Data in Electronic Medium

The Constitutional Court Decision (“Decision”) dated 16.12.2022 and numbered 2021/93 regarding the request of annulment of the phrase of “to make inquiry” in the paragraph 6 of article 8 of the Law Adopting the Decree Law on Disciplinary Provisions for the General Law Enforcement numbered 7068 (“Law”) published in the Official Gazette dated 22.03.2022 and numbered 31786.

In the case subject to the decision, the plaintiff filed a lawsuit before the Mardin 2nd Administrative Court for the cancellation of the penalty of dismissal, which was given on the grounds that the plaintiff made unauthorized inquiries of personal data in electronic environment.

Mardin 2nd Administrative Court which concluded the contested rule is contrary to the Constitution, applied to the Constitutional Court with the request of annulment of the paragraph 6 of the article 8 of the Law.

In subparagraph (aa) of paragraph 6 of article 8 of the Law in which acts requiring penalty of dismissal are regulated, “To make inquiry without authorization regarding personal data in electronic environment or computer logs, to share information obtained in such ways or announce it through broadcasting, to change or delete log records’’ and the phrase ‘‘to make inquiry’’ is the contested rule subjected to the request of annulment.

The Constitutional Court evaluated that:

It is mandatory and inevitable for the law enforcement officers who are responsible for ensuring order and security, to have the authority to inquire the personal data needed during the fulfilment of their duty in order to properly provide their service, however, acceptance of the law enforcement officers may inquire personal data regardless of the scope and nature of their duties and without any limitations shall mean a violation of the constitutionally secured right to protection of personal data and the formation of such perception towards law enforcement officers in the society may also lead to a loss of trust in law enforcement officers,

The obligation to protect fundamental rights and freedoms and personal data of individuals by official authorities of the government is a prerequisite of being a constitutional state and the Constitution,

Complying with the Constitutional provisions regarding the protection of personal data is one of the primary qualifications that the general law enforcement must have.

Since the provision of dismissal of the officer who unlawfully inquires personal data in the official information system and computer records used by the general law enforcement officers for the purpose of the service, prevents and deters such acts which do not comply with the basic qualifications required by their service, therefore, the contested rule is appropriate and necessary for the purpose sought to be achieved by this rule.

As a result of its evaluation, The Constitutional Court decided that:

The phrase of “to make inquiry” in the paragraph 6 of article 8 of the Law is not contrary to the Constitution and the Constitutional Court rejected the request.

You can access the full Turkish text of the Decision via the link below.

https://www.resmigazete.gov.tr/eskiler/2022/03/20220322-7.pdf