Individual Application

The Facts

The applicant filed a criminal complaint against her husband as the personal data submitted by the latter to the court during divorce proceedings had been obtained via a spyware installed on the former’s mobile phone. At the end of the proceedings before the criminal court, the applicant’s husband was acquitted on the ground that he had not disclosed such data through media, internet or any other means but merely relied on it during the divorce proceedings, and that he had not thus acted with any criminal intent. Thereupon, the applicant appealed and maintained, inter alia, that the chief public prosecutor’s office (“prosecutor’s office”) made an erroneous assessment as to the legal characterisation of the offence and that it failed to make an assessment regarding the unlawful acquisition of personal data. The regional court of appeal, however, upheld the decision.

The Applicant’s Allegations

The applicant claimed that her right to the protection of personal data under the right to respect for private life had been violated due to the failure to establish an effective judicial system.

The Court’s Assessment

The State is expected to take preventive measures so as to prevent the unlawful collection, processing and disclosure of personal data as well as to show deterrent judicial reactions to those who have performed such acts so as to prevent the occurrence of similar acts.

In the present case, a photograph, various videos, conversations and messages on the applicant’s phone were submitted as evidence during divorce proceedings. It is clear that such data found on the applicant’s phone is classified as personal data, and that unlawful acquisition and disclosure of personal data is characterised as an offence in the legislation.

The State’s obligation to set up an effective judicial system necessitates the conduct of an effective criminal investigation and prosecution into such unlawful acts. Accordingly, an effective investigation is required to be conducted into the applicant’s allegations, and in this regard, first of all, the incident should be clarified, as well as the conclusion should be justified in the particular circumstances of the case.

The applicant claimed that her husband used the said spyware not only for obtaining evidence for initiating divorce proceedings but he continued using the program even after the proceedings were initiated. As a result of the assessment made by the prosecutor’s office, it was concluded that the applicant’s husband confessed the imputed acts, and therefore he was indicted.

Besides, although the applicant raised the same allegations during the criminal proceedings, the criminal court, in its decision, referred to the divorce proceedings, stating that the accused performed the imputed acts in order to secure the relevant evidence and that the relevant data was used as evidence only during the divorce proceedings. In this regard, it has been observed that no investigation was conducted as to which personal data had been obtained, whether the data had been changed, how long the data had been accessed, as well as, no explanation was made as to why the applicant’s allegations in this regard had not been addressed.

In the present case, the inferior courts failed to make an assessment as to the way in which the applicant’s personal data had been obtained, the scope of obtained data and the question whether the impugned act had pursued a legitimate aim. In addition, while the issue as to whether there had been a criminal intent in the unlawful collection of data should have been clarified through the examination of all allegations raised by the applicant and investigation of the evidence adduced, the judicial authorities relied on the fact that the relevant data had not been disclosed, which was not indeed an element of the criminal act of unlawful obtaining of data. The inferior courts’ approach, which could lead to the impression that the spouses had no sphere of private life against each other, was obviously contrary to constitutional safeguards.

During the criminal proceedings, the inferior courts failed to investigate the substantive allegations regarding the clarification of the incident and to deepen the prosecution, but reached the conclusion relying on the grounds with no legal basis, which was in breach of the obligation to establish an effective judicial system.

Hence, the conditions arising from the obligation incumbent on the public authorities so as to establish an effective judicial system were not met in the present case.

Consequently, the Court has found a violation of the right to the protection of personal data under the right to respect for private life.