NEWS AND INSIGHT

Constitutional Court’s Decision Regarding Protection of Personal Data


07 November 2021

Constitutional Court’s Decision Regarding Protection of Personal Data

The alleged breach of personal data is based on the seizure of evidence submitted in a divorce case and the illegality of this procedure. In the case subject to the decision, one of the spouses installed an application that she has bought over internet on the mobile phone of the other spouse without permission and submitted personal information which consist of messages, contents, audio recordings, videos and a photograph obtained by this way as evidence in the divorce case between them.

The applicant spouse filed a complaint alleging that all of his personal data had been seized and used with the help of said spyware.

The applicant requested his wife to be punished for the crimes of violating the privacy of his private life, illegally obtaining or disclosing data, violation of privacy, eavesdropping and recording of conversations between persons.

As a result of the trial held by the Criminal Court of First Instance; the applicant’s spouse was acquitted of the alleged crimes based on the fact that applicant’s spouse admitted that she had installed the spyware on the applicant’s phone and did not knowingly or willingly disseminate and disclose the said collected records in a way that would lead to the committing alleged crimes other than submitting said records as evidence for the divorce case.

The applicant’s attorney applied to the appeal process and the Regional Court of Justice decided to uphold the said decision. As a justification of its decision, the Regional Court of Justice strongly emphasized that in order to prevent an unjust attack it is possible to record, seize and disseminate the personal data in order to present the evidence that may be lost to the competent authorities.

Decision of the Constitutional Court:

The Constitutional Court emphasized that the Article 20 paragraph third of Constitution guarantees the right of each person to request the protection of their personal data, and also that this right granted under this article corresponds to the right to respect for private life which is protected in Article 8 of the European Convention on Human Rights.

As also stated in various decisions of the Constitutional Court; personal data refers to all information relating to a person, provided that it is specific or identifiable.

As a result of the examinations, it has been understood that the photographs, videos, conversations, and message records of the applicant that were used as evidence in the divorce case are within the scope of information regarding certain natural person; accessing, using and processing this information is also within the scope of the right to request the protection of personal data within the scope of respect to private life. At the heart of the applicant’s complaints it is the allegation that the obligation to establish an effective judicial system was not complied with in the criminal complaint regarding the unlawful seizure of some his personal data.

It is understood that the third paragraph of Article 20 of the Constitution provides a guarantee not only against the limitations or interventions in the way of processing, but also against all kinds of interventions and limitations on personal data, within the scope of the right to demand the protection of personal data.

Therefore, in terms of requesting the protection of personal data within the scope of the protection of private life, the state has the positive obligation to protect all individuals within its jurisdiction against the risks that may arise from the actions of both public authorities and other individuals, as well as the person itself. In this sense, the state must primarily fulfill its obligation to establish an effective judicial system for the settlement of disputes.

In the case examined herein, the Criminal Court referred to the divorce case in the justification of its decision and stated that the accused spouse acted in order not to lose the evidence and the data obtained was only used as evidence in the divorce case. In this case, it has been observed that no research has been made on which personal data of the applicant has been obtained, whether these data have been changed, how long the data has been accessed; but also, it has been understood that there is no explanation regarding why the applicant’s claims have not been met in the justifications of Court’s decision.

Despite the clear confession of applicant’s spouse, the question whether there was a criminal intent in the illegal seizure of the data was based on the grounds that the data was not disclosed although it was not an element of the act of seizure itself. It is clear that the approach of the court of first instance that result in the lack of private life space between the spouses, is contrary to the constitutional guarantees.

In conclusion, since the conditions of the positive obligation that should be undertaken by the public authorities in establishing an effective judicial system have not been fulfilled, it has been concluded that the right to request the protection of personal data within the scope of the right to respect for private life regulated in Article 20 of the Constitution has been violated. 

In the light of the reasons explained above, the Constitutional Court unanimously decided that applicant’s right to request the protection of personal data is VIOLATED.