Opening Address,

Symposium on the “Right to Respect for Private Life within the scope of Professional Life”

28 June 2021

Esteemed Guests,

First of all, I would like to welcome you to the symposium held by the Constitutional Court, as well as extend you all my most sincere greetings.

As is known, we had to unfortunately adjourn the events that are held on the occasion of the foundation anniversary of the Court in April every year due to the Covid-19 pandemic. In this sense, I would like to express my pleasure to have the opportunity to hold this adjourned academic meeting today and to host you all here. I hope that we would be able to celebrate the next anniversaries in time and in a healthy environment.

Before proceeding with my speech, I would like to extend my gratitude to all participants to make significant contributions to the symposium through their presentations, questions and comments. I wish that the symposium be fruitful and successful.

Distinguished Participants,

There is an expression that we all have frequently heard and notably those dealing with hermeneutics    mostly use: “In the beginning was the Word… (In principio erat Verbum)”. This expression having theological and metaphysical meanings as regards existence, is used usually to point out the background and priority of the word.

When the subject-matter is law and justice, it is not indeed easy to find a new word that has not been uttered yet. What is to be expressed has been uttered for thousands of years. For instance, Aristotle depicted, 2500 years ago, justice as a basic virtue needed to be founded on individual and social life. According to Aristotle, "Man is the most excellent of all living beings, so without law and justice he would be the worst of all.”¹

The idea that justice is a basic virtue on which the maintenance of the life of both individuals and the State depends also constitutes the common theme of the tradition of political treatise applied to the greatest extent during the Seljuks. In his political treatise titled Dürerü’s-Sülûk, which was written nearly one thousand year ago, Mâverdî, one of the well-known jurists of the Islamic world, advises the rulers to be fair in the first place. As told by Mâverdî, Alexander the Great, who was the pupil of Aristotle, wondered whether the courage or the justice was the overriding value. He put this question to the Indian philosophers he came across during his voyage to India. The answer he received was interesting. The philosophers said “If justice is secured, then there would be no need for courage”.²

Esteemed Guests,

The maxim to be followed by judicial members liable to administer law and secure justice notably the judges should be three basic pillars, namely mind, morals and justice. The mind represents the will and independence as well as the ability to think, comprehend and have knowledge of things.

Judicial member is the person who has to use his mind. Therefore, judges and prosecutors may seek courage in using their minds. As noted by Kant, those who could not dare to use their own minds are doomed to be under tutelage. The judicial mind under tutelage cannot secure justice.

We have experienced a de facto and devastating example of this fact during the period underlying the coup-attempt of 15 July. We all witnessed the unlawfulness performed and caused by those who surrendered their minds and conscience to the others. On the occasion of the 15 July - Democracy and National Unity Day the 5^th anniversary of which will be two weeks later, I would like to note that one of the most significant lessons that should be taken from this malicious coup attempt is the fact that it is of vital importance for the future of a democratic state governed by the rule of law to secure judicial independence and impartiality, as well as to ensure judicial members to decide by merely being bound by law.

In this respect, I expressed the followings during my first speech I delivered in this hall long before the coup attempt of 15 July 2016: “We must keep in mind that one cannot be a judge without a free reason and conscience. One cannot be a judge if he rents out his mind and conscience or if he puts his will under pledge. There cannot be a remote-controlled judge or judiciary in a state of law.”.

Indeed, these remarks, albeit uttered through various expressions at different times and places, are the principles of the universal understanding of state of law. Any deviation from these principles will give rise to a vacuum in law and justice, which is more dangerous than any other forms of vacuum for the future of a country. That is because such a vacuum would impair the public trust and confidence in the State that has to be predicated on justice.

It should be particularly emphasised that the exclusive venue of justice in a state of law is courts. In cases where the courts fail to address the quests   for justice and to resolve disputes in a way compatible with the independent and impartial trial principles, it is inevitable to encounter extralegal quests.                        

Esteemed Participants,

Following these assessments concerning law and justice, I would like to dwell on the right to respect for private life that is the theme of this symposium. Legal questions as to this right are undoubtedly not specific to us. Today, the protection of private life is one of the much-debated issues all over the world.

The protection of privacy has become quite significant since the dates when individuals started to collectively live and States emerged. The States have always tended to monitor individuals’ private lives, as a method of administration. In other words, State always keeps an eye on individuals.            

Therefore, before mentioning the approach adopted by the Turkish Constitutional Court in this respect, I would like to provide brief information about certain opinions as to the control over, or monitoring of, private life which were expressed years ago and also shed light, to a significant extent, on today.     

In his letters written in the 18^th century, English jurist Jeremy Bentham depicted a building design called as “panopticon”. He advised the English government to employ this design not only in prisons but also in all institutions accommodating every kind of persons who would be kept under supervision, such as factories, hospitals and schools.

Panopticon, namely inspection house, has a circular structure. There is a yard in the middle of the building with a high tower located in the centre. The guards on the tower could watch all inmates in the cell surrounding the tower, as well as hear what was being said through the special tubes. According to Bentham, the foremost aim of the principle of surveillance is to “ensure those who are under surveillance to be sure that everything they do are known.”.³

Many years after Bentham, another English citizen George Orwell provided a terrifying depiction of a dystopic world in his book, 1984. Orwell explained how surveillance was in a sense interiorised as follows: “You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”⁴

From Orwell’s point of view, the most efficient surveillance means of “Big Brother’s” rulership is television. Orwell stated that “(…) the technical advance which made it possible to receive and transmit simultaneously on the same instrument (television), private life came to an end.”.⁵

Orwell passed away two years after he had completed his novel in 1948, which is indeed long before the invention of internet and smart cell phones. If he was alive today, he would astonishingly observe how the dystopic world he depicted in his book has come true flawlessly and has even been exceeded. He would probably be terrified of being a witness to the emergence of a ubiquitous “global big brother”, which is capable of watching things even in the darkness via cameras placed in almost everywhere, tracking locations via software, as well as seeing by an invisible and omnipotent eye, nowadays that is called as the digital age.

Besides, famous French philosopher Michel Foucault, who passed away in 1984, well defined the archaeology of the surveillance society. He explained in detail that we were living in a world of panopticism which was based on a relation of power inflicted on individuals and having three dimensions as surveillance, inspection and reformation.⁶

Esteemed Participants,

Within the scope of the foregoing conceptual explanations, it should be noted that in the internet age and surveillance society we live in, it has been much more difficult to protect the private lives of individuals. In parallel therewith, the effective implementation of constitutional and legal guarantees intended to protect the right to respect for private life has become much more important.

Pursuant to Article 20 of the Constitution, everyone has the right to demand respect for his/her private and family life. The Constitution-maker points out the importance of the intimacy of private life in its precise wording “Intimacy of private life … shall not be violated”.

The Constitutional Court has specified in cases brought before it through the constitutionality review and individual application that the concept of “private life”, which does not have an exhaustive definition, covers a very broad personal area. As a matter of fact, a number of issues, varying from the protection of individuals’ honour and dignity to the processing of their personal data, as well as from their private relations with others to the interference with their professional lives, fall within the scope of the respect for private life.

According to the Court, personal independence is the primary among the legal values ​​safeguarded under the right to respect for private life. This right is of vital importance for the individuals’ self-realization and self-development. Right to respect for private life, on one hand, refers to the individual’s right to live in his own private sphere, free from any unfavourable interference, and to many legal interests oriented to his free personal development on the other.⁷

Another issue falling into the scope of the right to respect for private life is the acts constituting an interference with the individuals’ professional lives. The Court examines, in some cases, such interference within the scope of Article 20 of the Constitution. Undoubtedly, other provisions of the Constitution are also scrutinized when determining the legitimate aim pursued by the interference.

In this scope, the duty of loyalty set forth in Article 129 of the Constitution is of particular importance. It is stipulated therein that public officials are obliged to carry out their duties with loyalty to the Constitution and the laws. Accordingly, the State may take administrative measures against public officials acting in breach of this duty.

The State has the authority to designate the requirements of such an obligation during both the recruitment in, and dismissal from, public service. The Court ruled in one of its judgments of 2019 that public officials’ duty of loyalty to the Constitution as well as commitment to the State may entail stricter qualifications and imposition of certain restrictions especially in respect of those who would hold certain public offices in representation of the State and critical in terms of national security.

According to the Court, especially “It is, of course, possible to introduce rules so as to set up the basic framework, by law, with regard to the security clearance investigation and archive inquiry to be conducted in respect of the individuals to be appointed to certain positions that are critical for the national security”.⁸

This is also, a fortiori, applicable to the cases of dismissal from public service in relation to the lack of loyalty and commitment to the State. In other words, the State is entitled to take actions to dismiss, or impose other administrative sanctions on, public officials found to act in breach of their duty of loyalty to the Constitution. In this sense, dismissal from public service may be considered as an interference with the right to respect for private life based on the cause and/or effect, given the close interplay between the professional life and private life.⁹

From this point of view, it is obvious that the right to respect for private life is not absolute insofar as it concerns interference with professional life and that it may be restricted under certain circumstances. However, such restrictions are of course not unlimited. In this regard, restrictions on fundamental rights and freedoms must comply with the conditions set forth in Article 13 of the Constitution.

In this scope, first of all, the right to respect for private life may only be restricted by law, except in times of emergency. Accordingly, as also frequently reiterated in the Court’s judgments, in the Turkish constitutional system, the power to make regulations entailing certain restrictions on rights and freedoms is vested exclusively in the legislature.

However, existence of a law restricting fundamental rights and freedoms is not per se sufficient. Statutory provisions restricting fundamental rights must not only be accessible, foreseeable, explicit and clear, but also afford safeguards capable of protecting individuals against arbitrary practices of the public authority. Therefore, formal existence of the law is not sufficient and it must also be of good quality in essence.

In addition, another issue that is of importance in terms of the lawfulness requirement in restricting the right to respect for private life is, although not very often, the judicial authorities’ interpretation of a given law by extending the scope of its intended purpose. In some of its judgments, the Court found that the statutory regulations restricting the right to respect for private life were “interpreted in an unreasonably broad and unforeseeable manner”, which did not satisfy the lawfulness requirement, in breach of the relevant right. ¹⁰

At this point, it should be noted that in order for restrictions that fulfil the lawfulness requirement not to result in violations, a given restriction must pursue a legitimate aim and not be contrary to the requirements of the democratic order of the society, as well as to the principle of proportionality.

In addition, the State has positive obligations to protect the right to respect for private life in relations between private persons, in other words, employers and employees. The Court has specified in its many judgments that especially employers should respect the private lives of their employees, which is a positive obligation incumbent on the State, and that in case of any failure to fulfil this obligation, a violation of the right to respect for private life may arise.

In this scope, for example, the Court found a violation of the right to the protection of personal data under the right to respect for private life in a given case where the content of the applicant’s correspondence via his corporate e-mail account had been examined by his employer and his employment contract had been accordingly terminated in the absence of necessary constitutional safeguards.¹¹ Similarly, it was concluded in another case, where the substantial allegations of the applicant who had been unjustly forced to quit work were not addressed by the inferior courts, that the State failed to fulfil its positive obligations and that therefore, right to respect for private life was violated.¹²

Esteemed Guests,

In conclusion, securing the right to respect for private life and privacy is extremely important for the protection and improvement of individual's corporeal and spiritual existence, autonomy and freedom. In addition, it should be borne in mind that a State governed by the rule of law, where fundamental rights and freedoms are secured and legal certainty is ensured, is a sine qua non for a welfare state.

As a matter of fact, like anything not new under the sun, this phrase is not a new one. Hayreddin Pasha, who once served as the Grand Vizier of the Ottoman Empire, made such a determination years ago and passed it down to us in the book he wrote. According to Hayreddin Pasha, who had shared his observations on the institutions of the European countries he had visited in the book that he had published eight years before the proclamation of the Ottoman Constitution (Kanun-î Esasi), “the countries that have reached the highest levels of prosperity are those that put in place the principles of freedom and the constitution in the form of political reforms”.¹³

Undoubtedly, as it was in the past, today it is primarily incumbent upon the judiciary to put in place the principles of freedom as well as the Constitution. When this duty is duly fulfilled, confidence in the judiciary will increase to the level desired. For this very reason, as members of the judiciary, we have to constantly assess and revise ourselves through self-criticism and accounting. This is our duty of conscience to law, justice and in the last instance to our nation.

Esteemed Guests,

Distinguished Participants,

Ending my speech, I would like to congratulate my colleagues who have undertaken a role in the organisation of this Symposium and express my thanks to everyone for their valuable participation.

I would like to once again express my gratitude to you all for your attendance at the Symposium and wish you health and prosperity.

¹ The Politics of Aristotle or A Treatise on Government, Everyman’s Library, trans. W. Ellis, (London: J.M. Dent & Sons Ltd., 1912), Chapter II, 1253a, p. 5.

² Ebü’l-Hasen El-Mâverdî, Dürerü’s-Sülûk Fî Siyâseti’l-Mülûk: Mâverdî’nin Siyâsetnâmesi, Prepared by A. Arı, (İstanbul, Türkiye Yazma Eserler Kurumu Başkanlığı Yayınları), 2019, p. 68.

³ Jeremy Bentham, Panoptikon: Gözün İktidarı, 3^rd Edition, trans. B. Çoban and Z. Özarslan, (İstanbul: Su Yayınları, 2019), p.74.

⁴ George Orwell, 1984, Signet Classics, Penguin Random House LLC, Berkeley 1950, p. 3.

⁵ Orwell, ibid., p. 205-206.

⁶ Michel Foucault (1996) Truth and Juridical Forms, Social Identities, 2:3, 327-342, DOI: 10.1080/13504639652213.

⁷ Court’s decision no. E. 2020/82, K. 2021/20, 18 March 2021, § 7.

⁸ Fatih Saraman [Plenary], no. 2014/7256, 27 February 2019, § 82.

⁹ Tamer Mahmutoğlu [Plenary], no. 2017/38953, 23 July 2020, §§ 85-90.

¹⁰ Mehmet Çetinkaya and D.K. [Plenary], No. 2018/27392, 15 April 2021, § 49.

¹¹ E.Ü. [Plenary], No. 2016/13010, 17 September 2020.

¹² T.A.A., No. 2014/19081, 1 February 2017.

¹³ Tunuslu Hayreddin Paşa, Ülkelerin Durumunu Öğrenmek İçin En Doğru Yol- Akvemü’l- Mesâlik fî Marifeti Ahvâlü’l-Memâlik, trans. S. Muhammed, (İstanbul: Büyüyenay Yayınları, 2017), p.132.