The Constitutional Court recently considered a claim that Article 136(1) of the Turkish Criminal Code ("Criminal Code") is unconstitutional because there is no clear definition or limitation for the phrase "personal data", violating Article 20 (right to privacy) and Article 38 (principle of legality) of the Turkish Constitution (decision number 2015/32, 12 November 2015). The Constitutional Court rejected the claim, ruling that technological developments mean it is impossible for legislators to specify all types of "personal data".

Article 136 of the Criminal Code states that persons that unlawfully give out, release or acquire personal data belonging to other people will be subject to imprisonment for between two to four years. The Criminal Court claimed this is ambiguous because here are no definite definition or limitation for the phrase "personal data".

The Constitutional Court noted that protection of personal data is included within the scope of the right to privacy, which is guaranteed by Article 20 of the Constitution. Article 136 of the Criminal Code supports provisions regarding personal data and right to privacy.

The Constitutional Court considered the principle of legality, outlined under Article 38 of the Constitution. It noted that the principle is adopted by the principle that crimes can only be regulated by law. Article 2 of the Criminal Code states that nobody can be punished for any act which laws do not count as a crime.

Previous Constitutional Court decisions state that the term "personal data" refers to all information in relation to a person that is specific or identifiable. While the European Convention on Human Rights does not clearly define the term, it does state that such data is regarded as included in the right to privacy.

In the case at hand, the Constitutional Court noted that depending on the technological advancements, the term "personal data" may emerge in various forms. Accordingly, the Constitutional Court accepted that the phrase refers to all information in relation to a person, which is specific of identifiable, in accordance with national and international regulations and court decisions.

Therefore, the Constitutional Court held that Article 136(1) of the criminal Code did not violate Article 38 or Article 20 of the Turkish Constitution.

Please see this link for the full text of the Constitutional Court decision (only available in Turkish).

Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.

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