Recent Development
The Constitutional Court decision No. 2018/14040 regarding an applicant's ("Applicant") right to request protection of their personal data regarding respect to privacy was published in the Official Gazette dated 24 August 2021.
The Constitutional Court rejected the Applicant's application as to the violation of their constitutional right of privacy due to storage of internet traffic data longer than the legal retention period and transfer of such data to judicial authorities, within the grounds that ordinary legal remedies were not exhausted. The decision is available online here (in Turkish).
Violation Claim Subject to the Application
During a criminal trial, the High Criminal Court requested the Applicant's internet traffic data between the years of 2014-2015 from the Information and Communication Technologies Authority ("Institution").
After the transfer of such data to the court, the Applicant filed a complaint before the Public Prosecutor of Istanbul against the Institution and the access providers, claiming that retaining internet traffic data for three years at the date of transfer would reveal that the data has been stored longer than the two-year legal retention period and thus retention was non-compliant with the related legislation. The public prosecutor issued a decision of non-prosecution. The Applicant's further appeal of the public prosecutor's decision was rejected by the Criminal Court of Peace. Afterwards, the Applicant brought the issue before the Constitutional Court and filed an individual application. The application was based on the claims that (i) the institution obtained internet traffic data from access providers that are obliged to store this data for a maximum period of two years and (ii) the transfer of this data approximately three years after its collection violates the right to request protection of personal data.
Evaluation of the Constitutional Court
The Constitutional Court has ruled that the individual application is a secondary remedy that is subsequent to the exhaustion of ordinary legal remedies, hence, in order for the individual application to be reviewed, the Applicant must firstly put forward their claims duly, with due diligence before the accessible and compensatory trial courts. Without this, the violation will continue.
The Constitutional Court underlined that the unlawful sharing and storage of personal data constitutes a crime under the Turkish Criminal Code No. 5237. In addition, the Constitutional Court assessed the violation in question as an act against personal rights and stated that the injured parties also have the right to appeal for compensatory remedies. Herein, by way of comparison between compensation and criminal proceedings, the Constitutional Court determined that the claim for compensation is the legal procedure that offers a higher chance of success because of the following:
- the inclusion of the principle of objective liability in compensation proceedings, lower standards of evidence, higher possibility of redress in negligent liability
- the employees of a legal entity cannot be held criminally responsible unless they commit the crime by a willful or negligent act
The Constitutional Court further emphasized that administrative and civil courts are able to detect illegal acts and violations by reviewing the merits of the complaint, to rule for compensation of non-pecuniary damages and decide on interim injunctions.
In the light of foregoing, the Constitutional Court decided that it will not review the application filed prior to exhaustion of compensation proceedings that offer a higher chance of success and recovery, considering the secondary remedy nature of the individual application.
Conclusion
In accordance with the Constitution of Turkish Republic, it is essential that the allegations regarding the violation of fundamental rights and freedoms are primarily evaluated and resolved through ordinary legal remedies. Given the Constitutional Court's decision at hand, applicants might first need to proceed with civil case that offer a higher chance of success and recovery, unless they have a valid claim attesting otherwise.
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