Legal AlertThe Constitutional Court’s Decision on the Failure to Properly Conduct the Prosecutor’s Office Investigation on the Complaint of Violation of the Right to Protection of Personal Data Was Published in the Official Gazette.

5 December 2022

The Turkish Constitutional Court’s (“Court”) decision with application number 2018/16857 (“Decision“) was published in the Official Gazette on November 29, 2022. In the Decision, the claim that the investigation into the complaint of unlawful recording of a non-public conversation was not conducted in accordance with the positive obligations of the state and therefore the right to request the protection of personal data was violated was examined and decided upon.

The applicant filed a criminal complaint with the Istanbul Office of the Chief Prosecutor (“Office”) on the grounds that his conversation about the debt relationship was recorded by M.R.A. in a non-public environment without informing him and with criminal intent.

Office determined that the audio recording in question had been submitted by M.R.A. to another investigation file in order to provide evidence for a crime allegedly committed by the Applicant and initiated an investigation under the crimes of violation of the right to privacy and interception and recording of conversations between persons.

However, Office decided that there was no need to open an investigation on behalf of the public since the audio recording did not contain any information on private life.

The Applicant objected to the decision, stating that the Chief Prosecutor’s Office did not take his statement, did not collect the evidence requested, and did not determine whether the audio recording was a montage or not. The Applicant’s objection was rejected.

Article 20, paragraph 1 of the Constitution reads as follows:

Everyone has the right to respect for his or her private and family life. The right to privacy and family life shall be inviolable.

Article 20, paragraph 3 of the Constitution reads as follows:

Everyone has the right to request the protection of personal data concerning him or her.

In its assessment, the Court stated that a person’s voice is also within the scope of personal data and that conversations that are not public are included in private life. The Court stated that according to Article 5 of the Constitution, which sets out the aims and duties of the state, it is a positive obligation of the state to prevent private persons from interfering with the personal data of data subjects in violation of the guarantees in the Constitution.

According to the Court, this positive obligation also covers the conduct of an effective investigation to clarify the identity of those responsible after the violation has occurred.

The Constitutional Court stated that the recording and use of the Applicant’s conversation in a non-public environment without the Applicant’s consent was a clear violation of the right to privacy.

According to the Court, the Office gave absolute priority to the purpose of obtaining evidence without assessing the extent to which the violation affected private life. In addition to this, the Court stated that the failure to collect the requested evidence, to take the Applicant’s statement and to determine whether there was a montage in the audio recording constituted a violation of the right to protection of personal data and private life enshrined in the Constitution.

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