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Recent development
The Constitutional Court’s decision No. 2019/20472 regarding an applicant’s (“Applicant“) right to request protection of their personal data regarding respect to privacy was published in the Official Gazette dated 18 March 2021.
The Constitutional Court decided that the right to request protection of personal data had been violated on the grounds that the authorized body failed to conduct an in-depth review into the allegations during the investigation stage. The decision is available online here (in Turkish).
Background
The Applicant’s spouse obtained the Applicant’s health reports from their hospital records and used them in their divorce lawsuit. The Applicant claimed that their spouse had illegally accessed the records using their doctor’s identity. Accordingly, the Applicant filed a complaint alleging that their spouse illegally obtained and shared personal data. The public prosecutor’s office granted a decision of non-prosecution on the grounds that the parties have the right to access each other’s health data given that they are first degree relatives as a married couple. The Applicant’s objection to the public prosecutor office’s decision was rejected and the Applicant raised this issue before the Constitutional Court.
Evaluation of the Constitutional Court
The Constitutional Court evaluated the application within the scope of the right to request protection of personal data as per Article 20 of the Constitution of the Republic of Turkey. The Constitutional Court pointed out that the state has positive obligations to prevent the unlawful intervention of third parties with the fundamental rights and freedoms of its citizens. In this respect, states must take necessary measures to prevent the unlawful collection and processing of personal data and conduct effective investigations and prosecutions against those who unlawfully process or collect personal data.
The Constitutional Court evaluated whether the public prosecutor’s office carried out an independent, swift, careful and effective process in the dispute at hand. As part of its evaluations, the Constitutional Court decided that the public prosecutor’s office acted on the assumption that the spouses had the right to access personal data of each other and did not conduct a comprehensive examination. The Constitutional Court further underlined that the hospital records of the Applicant were related to their treatment before marriage and were disclosed without their explicit consent. Accordingly, the Constitutional Court decided that the public prosecutor’s office’s evaluations indicating that the right to privacy of the Applicant had not been violated as the spouses have the right to access personal and health information of each other lacked legal basis. Further, such approach does not offer enough protection to data subjects for any possible interference with fundamental rights. In addition, the Constitutional Court emphasized that proceedings conducted without sufficient examination are not a deterrent in terms of similar interferences and do not provide necessary protection in terms of fundamental rights.
In light of the foregoing evaluations, the Constitutional Court decided that for the case at hand the right to request protection of personal data within the scope of the right to respect privacy had been violated considering that the public authorities failed to comply with their positive obligations.
Conclusion
In the decision, the Constitutional Court underlined that the state is obliged to ensure the effective implementation of legal regulations that will provide adequate protection regarding the protection of personal data. In this context, criminal investigations should include in-depth investigations.
