Recent Decision of the Turkish Constitutional Court Concerning Unlawful Obtainment of Personal Data

In a recent decision, the Turkish Constitutional Court (“TCC”) ruled that the “right to demand the protection of personal data” was violated within the scope of “respect to privacy of private life”, due to the lack of effective investigation conducted by the judicial authorities regarding the complaint on the unlawful obtainment of personal data.

The applicant claimed that “in the pending divorce case between him and his wife, his wife unlawfully seized the hospital records of the applicant, which were arranged before their marriage, and submitted these records to the divorce case file as evidence, thus the applicant made a complaint against his wife based on offense of misconduct, violation of privacy of private life, unlawful acquisition of and sharing personal data. The Public Prosecutor’s Office made a decision of non-prosecution regarding the complaint without conducting adequate investigation, and the objection filed against such decision was also rejected by the court. However, his wife, who presented evidence to the file, was working as a doctor, and had obtained these evidence unlawfully, and although she admitted that she had obtained these records by herself and there were other issues contradicting with her admission, the evidence was not adequately collected and evaluated by the prosecutor’s office, and the statements of the related persons were not taken, the investigation was not expanded, and therefore, the right to demand the protection of personal data within the scope of respect for privacy of private life was violated by not conducting an effective criminal investigation.”

In the TCC’s decision, it is ruled that it is initially necessary to determine whether there exists a personal data required to be protected within the scope of the mentioned right in order to be able to conduct an examination in terms of the “right to demand the protection of personal data”, which is guaranteed under article 27/3 of the Constitution, and in the concrete case, the information on the health status of the applicant and hospital records is required to be accepted as “data about a specific person”, and in this regard, the acquisition, use and processing of the these data falls within the scope of the “right to the protection of personal data”, therefore, the claim on the performance of an ineffective investigation stay under the scope of the “right to demand the protection”.

In addition, in the TCC’s decision, it is emphasized that considering the trial process, it is understood that the applicant did not disclose the information on his treatment, which were arranged before his marriage, and that applicant did not have any explicit consent for the providing this personal data to third parties, including his wife, therefore even if the investigation authority has accepted that access to these information is the right of the wife as first degree relative is unjust, this understanding leaves the person unprotected in terms of requesting the protection of personal data and patient rights.

Therefore, the TCC ruled to accept the applicant’s demand on violation of right by holding that the conclusion reached as a result of the investigation conducted by the judicial authorities does not contain sufficient grounds to protect personal data and patient rights, and as a result, the conditions required by the positive obligation needs to be undertaken by the public authorities for the effective and careful conduct of the investigation were not fulfilled in the concrete case, thereby this decision shall be sent to the relevant Chief Public Prosecutor’s Office for a re-investigation to eliminate the consequences of the violation. The TCC rejected the applicant’s claims as to compensation in its judgement.

Maral Celepyan Avşar
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