Duyurular

Turkish Constitutional Court's Decision on Violation of the Right to Request Protection of Personal Data

The decision of the Turkish Constitutional Court (“Constitutional Court”) with application number 2019/39889 and dated 17.07.2024, titled “Fatma Çiğdem Tenker Köksal Application” (“Decision”), regarding the violation of the right to request the protection of personal data within the scope of respect for private life, was published in the Official Gazette dated 17 December 2024 and numbered 32755.

 

According to the Decision;

 

  • The application concerns the allegations of violation of the right to request the protection of personal data within the scope of the right to respect for private life due to the rejection of the applicant's request for access to the data about herself.

 

  • The applicant requested access to information from the Ministry of Foreign Affairs on more than one occasion, claiming that the registration and information notes in his personal file were effective in the background of events such as underpayment of his foreign travel fee and the termination of his assignment at the Embassy in Buenos Aires after having been appointed for four years. Some of these requests were not responded to and others were unlawfully rejected.

 

  • In the opinion letter obtained from the Ministry of Foreign Affairs, it was stated that the applicant's personnel file contains personal information and opinions of third parties such as his superiors of registry, that Article 21 of the Law on the Right to Information dated 9/10/2003 and numbered 4982 does not provide a right only for the applicant and that it is in accordance with the law not to provide such information in order to protect the privacy of the private life of other third parties in the personnel file.

 

  • The complaints subject to the application are linked to the right to respect for private life. The right to respect for private life is protected under Article 20 of the Constitution. The State is obliged not to arbitrarily interfere with the private and family life of individuals and to prevent unjustified attacks by third parties. One of the legal interests protected under the right to respect for private life is the individual's right to privacy. However, the right to privacy does not only consist of the right to be alone, but also includes the right to control information about oneself.

 

  • The right to protection of personal data of individuals, which is within the scope of the right to respect for private life, is clearly regulated in Article 20 of the Constitution. This regulation stipulates that everyone has the right to request the protection of personal data concerning him/her, and that this right includes the right to be informed about personal data concerning him/her, to access such data, to request their correction or deletion, and to learn whether they are used for their intended purposes.

 

  • Registry reports include issues such as the civil servant's compliance with discipline during the period, sense of responsibility, efficiency and diligence, commitment to duty, enthusiasm for work, professional knowledge, impartiality, attitude towards colleagues, superiors and business owners. There is no doubt that the registry reports in which professional activities are evaluated are personal data due to their importance, nature and content.

 

  • The regulations in the Public Personnel Communiqué and Article 21 of Law No. 4982, which refer to the principle of privacy of private life, do not impose restrictions on the individuals themselves, but only on the disclosure of information about them to third parties.

 

  • While the personal data regulations in connection with the third paragraph of Article 20 of the Constitution should be evaluated as a whole and a decision should be made, the judicial authorities interpreted the Public Personnel Communiqué as imposing restrictions on access to information about themselves and rejected the applicant's request for access to personal data without any further evaluation. Considering the principles regarding the legality criterion stipulated in Article 13 of the Constitution, a judicial interpretation that erroneously considers a transaction and action that is understood not to fall within the scope of the norm stipulated in the law within the scope of that norm does not fulfil the foreseeability requirement.

 

  • It has been unanimously decided that the right to request the protection of personal data within the scope of the right to respect for private life guaranteed under Article 20 of the Constitution has been violated.

 

You can access the full text of the Decision here.

 

Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr