Constitutionality Review

The impugned Law no. 7072 entered into force after the ratification by the Grand National Assembly of Turkey (“the GNAT”) of Decree Law no. 680 issued under the state of emergency. The applicability of the impugned provisions extends beyond the state of emergency period, and thus they bear the characteristics of a general regulation that is not confined to the state of emergency period. For this reason, Article 15 of the Constitution by which the regime of suspension of fundamental rights and freedoms in times of emergency is regulated shall not be applicable in terms of the constitutionality review of the impugned provisions.

A. Provision envisaging the rejection of the licence applications of media service providers reported to have connections and relations with terrorist organisations

Contested Provision

The contested provision, Article 19 § 3 of Law no. 6112 added by Article 18 of Law no. 7072, stipulates that the licence applications of media service providers the shareholders, chairman and board members of which are reported by the National Intelligence Agency (“the MİT”) and the Security Directorate to have connections and relations with terrorist organizations shall be rejected.

Ground for the Request for Annulment

It was maintained in brief that the restriction imposed by the contested provision was disproportionate and that the procedures and principles regarding the said interference were not set forth in the law, which was accordingly in breach of the Constitution.

The Court’s Assessment

Article 13 of the Constitution stipulates that any restriction on the freedoms of expression and the press shall be in conformity with the reasons specified in the relevant articles of the Constitution and be proportionate.

According to the impugned provision, in determination of whether the shareholders, chairman and board members of media service providers have connections and relations with terrorist organisations, the conclusion reached and notified by the MİT or the Security Directorate shall be based on, and therewith the licence applications of media service providers shall automatically be rejected. The effect of such a rejection is not limited to a certain period of time.

The contested provision also has a restraining effect on the effectiveness of the judicial review to be made in this regard, as the authority afforded by the contested provision to make a judicial review of the impugned administrative act is limited to the determination as to the existence of a notification by the relevant law enforcement unit.

The information and documents relied on by the Security Directorate and the MİT in their notifications are not necessarily of the nature that may form a basis for the criminal investigation. In other words, it is highly probable that the facts underlying the conclusion reached by the Security Directorate and the MİT are of an intelligence nature. Therefore, the judicial review of the actions to be taken by the administration entrusted with the evaluation of the license applications is much more important.

The automatic results of the evaluations to be made by the security institutions and the lack of authority on the part of the administration and the incumbent courts that will review the administrative act to make an assessment significantly limit the ability to check the accuracy of the said notifications and to take an administrative action according to the actual situation. It has been observed that the relevant Law provides no legal guarantee ensuring the exercise of the said authority in accordance with the legislative intent of the impugned provision and preventing any arbitrariness in this regard.

It has been concluded that the impugned regulation, which does not, as a rule, allow the administration evaluating the license applications and the courts that will review the former’s actions to make an assessment, imposes a disproportionate restriction on the freedoms of expression and the press.

The determination to the effect that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

Consequently, the contested provision has been found in breach of Articles 13, 26 and 28 of the Constitution and therefore annulled.

B. Provision authorising the police, as regards cybercrimes, to access the identity information of internet subscribers as well as to conduct investigations

Contested Provision

The contested provision, Additional Article 6 § 18 of the Law no. 2559 on the Duties and Powers of Police added by Article 26 of Law no. 7072, stipulates that as regards cybercrimes, the police shall be authorized to access the identity information of internet subscribers and to conduct inquiries on the internet, and that the access, location and content providers shall provide such requested information to the relevant law enforcement unit.

Ground for the Request for Annulment

It was maintained in brief that the impugned provision left the authority to investigate and examine cybercrimes directly to the judicial law enforcement officers, while such authorities should have been enjoyed only by the public prosecutor according to the criminal procedure system. In this regard, the provision was claimed to be in breach of the Constitution.

The Court’s Assessment

Protection of personal data is guaranteed within the scope of the privacy of private life under Article 20 of the Constitution whereby the right to respect for private and family life is enshrined.

As set out in previous decisions/judgments of the Court, “… not only the personal identifying data such as name, surname, date and place of birth, but also any data such as phone number, motor vehicle plate number, social security number, passport number, cv, photo, footage, voice records, fingerprints, IP address, e-mail addresses, hobbies, preferences, persons interacted with, group memberships, family information and health-related information, which may also lead to direct or indirect identification of the person“ are classified as personal data.

In this regard, the identity information of internet subscribers constitutes personal data. The contested provision imposes a restriction on the right to protection of personal data under the right to respect for private life, since it allows the police to collect the identity information of internet subscribers, which is classified as personal data, and stipulates that the access, location and content providers shall be required to report such data to the relevant law enforcement unit.

Any restriction on fundamental rights and freedoms must comply with the requirements of the order of a democratic society and serve a pressing social need.

Pursuant to the Code of Criminal Procedure no. 5271, it is incumbent upon the judicial authorities to designate the competent chief public prosecutor’s office to investigate crimes, including cybercrimes, as well as to resolve the related disputes. It is also specified therein that the judicial authorities shall be entrusted with the authority to access the data necessary for the criminal investigation, including the data that may ensure the fulfilment of the aforementioned duty.

It has been concluded that entrusting the law enforcement units with the impugned authority by restricting the right to protection of personal data solely for the purpose of designating the competent chief public prosecutor's office does not correspond to a pressing social need, and the said restriction does not comply with the requirements of the order of a democratic society.

The determination to the effect that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

Consequently, the contested provision has been found in breach of Articles 13 and 20 of the Constitution and therefore annulled.

C. Provision envisaging the conduct of security clearance investigation and archive research in respect of the personnel to be employed on contractual basis

Contested Provision

The contested provision, Article 7 § 1 (f) of Decree Law no. 399 added by Article 82 of Law no. 7072, stipulates that security clearance investigation and archive research shall be conducted in respect of the personnel to be employed on contractual basis.

Ground for the Request for Annulment

It was maintained in brief that entrusting the administration with the authority to prevent a person from exercising his constitutional rights based solely on the data obtained through security clearance investigation would result in arbitrariness, and that the collection, processing and use of personal data should be regulated by law. In this regard, the impugned provision was claimed to be unconstitutional.

The Court’s Assessment

The data obtained through security clearance investigation and archive research are of personal nature. The contested provision imposes a restriction on the right to the protection of personal data since it allows the public authorities to obtain, record and use the data related to individuals’ private, business and social lives.

In accordance with Article 20 of the Constitution, personal data can only be processed in cases prescribed by the law or with the explicit consent of the individual. Article 13 of the Constitution stipulates that fundamental rights and freedoms may be restricted only by law. Pursuant to the relevant constitutional articles, the legal rules which intend to limit the right to the protection of personal data should be definite, accessible and foreseeable, preventing any arbitrariness.

It is at the discretion of the legislator to introduce regulations stipulating that security clearance investigation and archive research must be conducted prior to entering into public service. However, such provisions must clearly set forth the circumstances in which the public authorities shall be granted an authority to take measures and interfere with the privacy of private life, as well as the limits of the authority to be granted, and they must also provide sufficient safeguards against any possible abuse of authority.

The impugned provision contains no regulation regarding the nature of the data and documents accessible during the security clearance investigation and archive research, use of such data, the authorities that will conduct investigation and research, how and how long the accessed data will be stored, whether those concerned are entitled to challenge the said data, whether the data will be deleted after a while, the procedure to be followed if they are to be deleted, and the control mechanism to be applied in order to prevent any abuse of authority. In other words, no definite and foreseeable legal safeguards, preventing any arbitrariness, regarding the conduct of security investigation and archive research and use of the data collected are set forth in the said provision.

It has been concluded that allowing for the collection, use and processing of personal data through security clearance investigation and archive research, in the absence of the respective legal safeguards and basic principles, is in breach of the Constitution.

The determination to the effect that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency.

Consequently, the contested provision has been found in breach of Articles 13 and 20 of the Constitution and therefore annulled.