Review of the Constitutional Court Decision dated 02.02.2022 No. 2020/20874 Regarding the “Ümit Karaduman Application”

INTRODUCTION

In the Constitutional Court’s decision dated 02.02.2022 with application number 2020/20874 regarding the “Ümit Karaduman Application”, published in the Official Gazette No. 31802 dated 07.04.2020, the allegation that the applicant’s right to request protection of personal data within the scope of the right to respect for private life and freedom of communication had been violated was examined.

The subject of the application was the registration of letters received by or sent by the applicant, who was under detention, into the National Judiciary Informatics System (“UYAP”) without evaluating whether such letters contained any prohibited or objectionable content.

SUMMARY OF THE EVENTS

The applicant, Ümit Karaduman, was detained on 13.02.2018 on the allegation of being a member of an armed terrorist organization and was held in a penal institution.

Pursuant to the Circular of the General Directorate of Prisons and Detention Houses dated 10.10.2016 (“Circular”), all penal institutions throughout Türkiye were informed through the Chief Public Prosecutor’s Offices that all communication tools, including letters and faxes of convicted persons and detainees, must be scanned and recorded into UYAP, except for letters submitted in sealed envelopes to official authorities or lawyers for defense purposes.

Following the Circular, penal institutions began implementing this procedure, and the letters sent by the applicant and the letters received by the applicant were recorded into UYAP in accordance with the Circular.

The applicant applied to the Execution Judge requesting the deletion of these records and the termination of this practice on the grounds that he had not consented to the registration of his incoming and outgoing correspondence in UYAP.

In his application petition, the applicant emphasized that the permanent storage of his correspondence in the system had no legal basis and stated that his request for deletion of the records had not been answered by the penal institution.

The applicant claimed that his constitutionally protected rights to respect for private life and the presumption of innocence had been violated.

The Execution Judge stated that, pursuant to Article 68/2 of the Law No. 5275 on the Execution of Criminal and Security Measures (“Law No. 5275”), letters sent by convicted persons and letters received by them must be examined by the letter examination commission, and if such a commission does not exist, by the highest authority of the institution.

The Execution Judge concluded that the relevant procedures had been carried out in accordance with the legislation and that there was no violation of the Constitution.

PART 2 – REVIEW OF THE COUNCIL OF STATE ASSESSMENT, CONSTITUTIONAL COURT EXAMINATION AND GROUNDS FOR THE DECISION

Following the rejection of the applicant’s request by the Execution Judge, the applicant submitted an individual application to the Constitutional Court on 01.07.2020, claiming that his right to respect for private life and freedom of communication had been violated, and requested compensation.

In the meantime, with the decision of the Council of State Administrative Case Chambers dated 14.09.2020 and numbered 2020/403, it was stated that although registration of correspondence in the UYAP system may be possible, such authority cannot be unlimited or unconditional.

The Council of State emphasized that the scope and limits of such registration authority must be regulated in a manner that does not violate the inspection authority granted under the Regulation on the Administration of Penal Institutions and the Execution of Criminal and Security Measures and Law No. 5275.

It was further stated that the relevant regulation did not provide sufficient protection against the electronic recording of letters received from and sent by prisoners, even where such letters did not contain prohibited content and were of a private and confidential nature.

The Council of State evaluated that the Circular exceeded the limits of its authority because:

it enabled the registration and storage of correspondence containing prisoners’ personal information without making any distinction as to whether such correspondence was objectionable or not;
it did not determine how long such records would remain in the system;
it did not establish the principles regarding access and usage rights of third parties who could access these records.

Accordingly, the Council of State decided to suspend the execution of the relevant Circular.

It is accepted that the mere existence of laws restricting fundamental rights and freedoms in a formal sense is not sufficient; therefore, the quality and content of the law itself are also important in terms of the legality requirement.

The Council of State stated that regulations concerning prisoners’ correspondence must provide sufficient safeguards against arbitrary actions and excessive authority by determining:

the retention period of correspondence records;
access rights of third parties;
principles regarding the use, destruction, and confidentiality of such data.

Within the scope of the regulation subject to the present case, it was concluded that storing prisoners’ correspondence in the system without distinguishing between prohibited correspondence and ordinary correspondence containing personal information and unrelated to criminal proceedings resulted in a departure from the concept of “objectionable correspondence” regulated under the legislation.

PART 3 – LEGAL ASSESSMENT, EVALUATION UNDER THE LAW NO. 6698 ON THE PROTECTION OF PERSONAL DATA AND CONCLUSION

LEGAL ASSESSMENT

Pursuant to the right to respect for private life protected under the Constitution of the Republic of Türkiye and the European Convention on Human Rights, everyone has the right to respect for their private and family life, residence, and correspondence.

An individual application may be filed against acts or procedures violating this right.

Fundamental rights and freedoms may only be restricted by law without affecting their essence, and such restrictions must not be contrary to the wording and spirit of the Constitution, the requirements of a democratic society, the principles of the secular Republic, and the principle of proportionality.

Within this framework, although the right to respect for private life and the freedom of communication subject to the present application may be restricted by law, such restriction must comply with the principle of proportionality.

The registration of the letters and correspondence subject to the application into the UYAP system must also be evaluated within the scope of the Law No. 6698 on the Protection of Personal Data (“Law No. 6698”).

The purpose of the Law No. 6698 is to protect fundamental rights and freedoms of individuals, particularly the right to privacy, during the processing of personal data.

According to the Law No. 6698, personal data must be processed in accordance with the principles that such data:

must be processed lawfully and fairly;
must be processed for specific, explicit, and legitimate purposes;
must be relevant, limited, and proportionate to the purposes for which they are processed.

In the present case, the applicant’s correspondence was recorded in the UYAP system without first determining whether such correspondence contained any prohibited or objectionable content.

Furthermore, the legislation did not clearly regulate:

how long prisoners’ correspondence would remain stored in the system;
which third parties would have access to such records;
under what conditions such data could be used;
whether such data could be shared with third parties;
procedures regarding deletion and destruction of such records.

Therefore, it was concluded that the interference with the applicant’s right to respect for private life and freedom of communication did not satisfy the requirements of legality and proportionality.

CONCLUSION

In the present application, it was regulated that all correspondence of detainees and convicted persons, except for letters submitted to lawyers for defense purposes or communications with official authorities, should be scanned and recorded into the UYAP system.

The relevant regulation enabled the storage of correspondence in the system without making any distinction as to whether such correspondence contained objectionable information or not.

However, since the legislation did not clearly determine:

the period during which prisoners’ correspondence would be kept in the system;
the conditions under which third parties could access such correspondence;
the scope and conditions of use and sharing of such correspondence;

the Constitutional Court unanimously ruled that the applicant’s rights guaranteed under Articles 20 and 22 of the Constitution of the Republic of Türkiye had been violated.

These rights include:

the right to request protection of personal data;
the right to respect for private life;
the right to freedom of communication.

ADDITIONAL EVALUATION

The right to respect for private life, protected under the Constitution of the Republic of Türkiye and the European Convention on Human Rights, grants everyone the right to respect for their private and family life, home, and correspondence.

Fundamental rights and freedoms may only be restricted by law, provided that such restrictions do not violate their essence and comply with the principles of necessity and proportionality.

Although the right to respect for private life and freedom of communication may be subject to restrictions concerning detainees and convicted persons due to the requirements of prison security and public order, such restrictions must be based on clear legal provisions and must include sufficient safeguards against arbitrary interference.

Considering the principles under the Law No. 6698 on the Protection of Personal Data, personal data must be processed only for legitimate purposes and in a manner that is limited, necessary, and proportionate.

In this context, recording correspondence into the UYAP system without evaluating whether such correspondence was objectionable, and without determining the retention period and access conditions, resulted in an unlawful interference with the applicant’s right to privacy and freedom of communication.

Accordingly, it was concluded that the absence of adequate safeguards regarding the storage, access, and processing of correspondence constituted a violation of the right to respect for private life and the freedom of communication.

This information is submitted for your consideration and evaluation.

For detailed information:

info@eyuboglubuyukatak.av.tr