Not only Ministries but also various governmental institutions, including the Public Procurement Authority, Turkish Patent Institute and Borsa İstanbul, will be obliged to share persons' data in their system with the Social Security Institution ("SSI"). SSI's authorization to reach private data goes even further––your bank will disclose your banking information to the SSI for some data periodically, and in other cases if the SSI requests it.
The Turkish Parliament has recently adopted the Communiqué on Insurance Check to Be Conducted by Banks and Public Administration and Information and Documents to Be Obtained from Agencies and Institutions ("Communiqué"). The Communiqué was published in the Official Gazette No. 29026 on 10 June 2014 and will enter into force on 1 August 2014. The Communiqué was drafted based upon the Regulation1 having the same title with the Communiqué's ("Regulation"), which was enacted and became effective at the end of 2013. SSI has, in fact, already been authorized to reach persons' data via various institutions, including banks, pursuant to Articles 8 and 100 of the Law No. 5510 on Social Securities and General Health Insurance2 ("Law No. 5510"). Yet, the Regulation defines the "extensive" scope of the SSI's such power and the Communiqué regulates the details. To put it more explicitly, the Communiqué answers the questions of which governmental authorities shall transfer when and what sorts of information and/or documents to the SSI.
SSI may request relevant information or documents only for the purposes of ensuring social securities of citizens, following up and collection of its receivables, and fulfilling its duties imposed thereon under the Law No. 5510––which is, indeed, a very broad scope of limitation. Accordingly, for disclosure of certain data, the SSI will execute protocols with the institutions whereby the institution in question will have to make the relevant information or documents available to the SSI. The institutions will not refrain from executing these protocols. For other sorts of data, the SSI will request them directly from the institution concerned. We highlight below some key aspects of the Communiqué.
Right to privacy vs. SSI's ability to reach private data: The right to privacy as a fundamental right has presumably never been such a hot topic as it is today in every developed and developing country, which is a result of incremental and incredible, and for some terrifying, advancements in technology, particularly with the internet. In line with this, the right to privacy is also heavily discussed with respect to governments' surveillance and access to private data. The Law No. 5510, as well as the Regulation and Communiqué, are clear about a potential conflict between the right to privacy and SSI's power to reach private data: the right to privacy has precedence over the SSI's nearly unlimited authority. Yet, the "delicate" protection of the law for the right to privacy brings other issues up to the discussion, such as how could one claim that his/her right to privacy was violated by the disclosing institution and/or the SSI if––in fact, as designated by the Communiqué––he/she would not have been informed of the disclosure previously or at any time afterwards. Furthermore, circumstances which may lead to serious consequences concerning the Government's security, the right to privacy in family life and the right to defense are also reserved vis-à-vis the SSI's empowerment by the law.
Which institutions will have to cooperate with the SSI? In addition to the Ministries and banks, the following institutions will have to disclose the requested data to the SSI: independent sport federations, bank funds, Press and Publication Association (Basın İlan Kurumu), Borsa İstanbul (Turkey's only stock exchange), Public Procurement Authority, Turkish Tradesmen and Artisans Confederation, Turkish Travel Agencies Association, Turkish Patent Institute and Higher Education Council (Yükseköğretim Kurulu).
What kinds of data will banks disclose to the SSI? Banks will inform the SSI on whether there is money in the account of the person concerned, should the SSI asks for such information. Moreover, the workplace and permanent address, as well as account information of those who failed to pay his/her debt timely to the SSI will be disclosed to the SSI. The SSI will further be entitled to levy electronically bank accounts of these persons and have the amount subject to the levy transferred to its own accounts. In addition, in cases of granting a loan which is not of a commercial nature or issuance of a credit card, if the bank obtained the relevant person's payroll, then it will have to share the payroll informaiton with the SSI.
Will the banks' secrecy obligation be affected? Similar to those applicable in many other countries, Turkey's banking legislation imposes on banks the duty to keep their customers' info confidential. There are also other secrecy burdens placed on certain governmental authorities, such as the tax privacy between taxpayers and tax authorities, including tax officers and tax courts, which obtain private data of taxpayers during performance of their duties. The Regulation recognizes exceptions to such obligations of banks and other institutions to maintain secrecy: in the provision of information and documents to the SSI, and restriction provisions under special laws are not taken into consideration. As a consequence, information requested from banks regarding natural persons or legal entities would not fall within the scope of the disclosure of the secret burdens under banking legislation. Also, those requested from the Ministry of Treasury or institutions connected thereto are exempted from the tax privacy. Thus, neither banks nor governmental institutions would violate their secrecy obligation while sharing private data they hold in their possession with the SSI. Neither could they refrain from disclosing the relevant information to the SSI on the grounds of technical impossibility or privacy and secrecy obligation or for any other reason whatsoever, save for the right to privacy and other reasons specified above.
Other types of information to be delivered to the SSI: The Communiqué elaborates which data will be disclosed by each institution specified therein, either periodically or upon the SSI's request. Some of the remarkable ones are as follows:
- The General Directorate of Land Registry and Cadastre to make available to the SSI real estate's information of those who have debts to the SSI;
- The Ministry of Customs and Trade to provide information and documents regarding commercial vehicles which have entered into, or left Turkey;
- Trade Registries to provide, upon the SSI's request, information about legal entities and their shareholders if not available on the Central Trade Registry System (Merkezi Sicil Kayıt Sistemi, known as MERSIS);
- Governorships, upon the SSI's request, to inform on as to whether the relevant person has travelled abroad or not;
- The General Directorate of Security to inform with respect to the vehicles registered in the name of those who did not pay their debts timely to the SSI;
- Borsa İstanbul to make available to the SSI info on shares registered with Central Securities Depository and owned by those who failed to pay their debts to the SSI in due course.
Sanction for failure to disclose the requested data: According to the Law No. 5510, in case the relevant institution, including public administrations and banks, fails to disclose the requested data to the SSI in the absence of a force majeure event, it would be subject to an administrative fine corresponding to five times of the monthly minimum wage. If the requested information or document is provided later than the time the SSI asked for, then the fine would be twice of the monthly minimum wage.3
1 Published in the Official Gazette No. 28843 on 6 December 2013.
2 Published in the Official Gazette No. 26200 on 16 June 2006.
3 Gross monthly minimum wage is TRY 1.134 from 1 July 2014 until the end of this year. Accordingly, the fine forfailing to fulfill the SSI's data request will correspond to a total amount of TRY 5,670 and if the requested data will be provided later, the fine will amount to TRY 2,268 when the Communiqué becomes effective on 1 August 2014.