Duyurular

Turkish Data Protection Authority Publishes an Information Note on the Application of Misdemeanours in Terms of Time in the Law on the Protection of Personal Data

As it is known, with the Law Amending the Code of Criminal Procedure and Certain Laws published in the Official Gazette dated 12.03.2024 and numbered 32487, a new provisional article has been added to the Law on the Protection of Personal Data numbered 6698 (“Law”) as follows.

 

“ Provisional Article 3- (1) The first paragraph of Article 9 before it was amended by the Law amending this article shall continue to be applied until 1/9/2024 with the amended version of the article that entered into force.

(2) The applications pending before the criminal judgeships of peace as of 1/6/2024 shall continue to be heard by these judgeships.”

 

Since the first paragraph of Article 9 of the Law, which regulates the procedures and principles regarding the transfer of personal data abroad, was stated to continue to be applied until 01.09.2024 with the amended version of the article, many question marks came to mind in the application of the Law in terms of time. In order to clarify these uncertainties, the information note prepared by the Turkish Personal Data Protection Authority (“Authority”) regarding the application of the Law in terms of time was published on the official website of the Authority on 19.12.2024.

 

According to the information note:

 

The application of the Law in terms of time; An application should be followed by evaluating the regulations regarding the application in terms of time in the Law on Misdemeanours and the Turkish Criminal Code.

 

The main principle in the application of norms in terms of time in Turkish criminal law is the application of the legal rules in force at the time of the offence. However, exceptionally, if the legal rules that entered into force later produce more favourable results than the legal rules in force at the time the offender committed the act, the later norm may be applied to the past acts in accordance with the principle of “the more favorable provision applies retroactively”. These rules explained regarding the application in terms of time in criminal law are also applied to misdemeanours in accordance with the Law on Misdemeanours.

In accordance with the principles explained above, if the act subject to the complaint involves the processing of sensitive personal data within the scope of Article 6 of the Law and the Board Decision will be taken after 01.06.2024;

 

  • If the misdemeanour occurs with a sudden act and the act occurred before the amendment of the law, the favourable law shall be applied.

 

  • If the misdemeanour occurs with a continuous act, two situations may arise if the act started before the amendment of the law and the complaint was made before the amendment of the law. In this case:

 

  1. If the act was interrupted before the amendment, the favourable law will be applied.
  2.  If the act was interrupted after the amendment, the new law will be applied.

 

  • The favourable law shall be applied in the event that the habitual offence started and completed before the amendment of the law, but the complaint is filed after the date of amendment.

 

  • In the event that the habitual offence started before the amendment, the complaint was filed after the amendment date and the act continued until the Board Decision, the new law shall be applied since the act was interrupted by the Board Decision issued after the amendment date and the habitual misdemeanour is accepted to have occurred on the date of the interruption of the act.

 

  • If the act occurs after the amendment of the law, the new law will be applied.

 

Since Article 9 of the Law was amended on 01.06.2024 and the transition period will continue to be applied until 01.09.2024, the possibility of transferring personal data abroad based on the explicit consent of the data subject will be reserved until 01.09.2024. After 01.09.2024, the possibility of transferring personal data abroad based only on the explicit consent of the data subject without the elements included in the text of the amendment will cease to apply.

When the transition period (01.06.2024-01.09.2024) regarding the transfer of personal data abroad within the scope of explicit consent is completed, the principles to be applied by the Board in terms of time are as follows;

 

  • The favourable law will be applied in cases where the sudden or continuous act occurs before the amendment, is completed and the complaint is filed before the amendment date.

 

  • In the event that the continuous act started and continued before the amendment and the complaint was filed during the transition period, if the act was interrupted before the amendment (before 01.09.2024), the favourable law shall apply. If the act was interrupted after the amendment or has not yet been interrupted, the new law shall apply.

 

  • If the continuous act started and continued before the amendment and the complaint is filed after the transition period, the new law will be applied if the act is interrupted by the Board Decision taken after the amendment date.

 

  • The new law will be applied if the act occurs after the amendment.

 

You can access the full text of the information note here.

Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr