PROVISIONS REGARDING THE PROCESSING AND PROTECTION OF PERSONAL DATA IN THE TURKISH CIVIL CODE
1. General Overview
Article 24 of the Turkish Civil Code (TCC), within the Personality section of the First Part allocated to Natural Persons in the first book titled Personal Law, provides protection for personality rights. It has been examined in detail in previous sections that personality rights are comprehensive rights that include all values related to a person’s material and spiritual integrity, and that personal data is often included within this value.
2. Protection of Personality Rights
Article 24 of the TCC: “Any person whose personality rights have been unlawfully attacked may request the judge to provide protection against the attackers. Every attack on personality rights is unlawful, unless it is justified by the consent of the person whose personality rights have been violated, a superior private or public interest, or the exercise of authority granted by law.”
Anyone whose personality rights have been attacked through violation of their personal data protection rights may, pursuant to Article 25 of the Civil Code, request from either their own domicile court or the defendant’s domicile court to prevent the threat of attack, to end an ongoing attack, or to establish the unlawfulness of an attack whose effects continue even if it has ended.
The plaintiff may also request from the judge, along with these remedies, the correction or notification of the decision to third parties or its publication. The person whose personality rights have been damaged may also make claims for material and moral damages, and may also request that the gain obtained by the defendant due to the unlawful attack be given to them according to the provisions of unauthorized agency.
3. Compensation for Damages
Article 646 of the Turkish Code of Obligations (TCO) states that the TCO is the Fifth Book of the Turkish Civil Code No. 4721 dated 22/11/2001 and is complementary to the TCC.
Article 49 of the TCO: “Anyone who causes damage to another person through a faulty and unlawful act is obligated to remedy this damage. Even if there is no legal rule prohibiting the harmful act, anyone who intentionally causes damage to another person through an act contrary to morality is also obligated to remedy this damage.”
The TCO also protects personality rights against attacks with a special provision in Article 58.
Article 58 of the TCO: “A person who suffers damage from violation of personality rights may request payment of a sum of money under the name of moral compensation in return for the moral damage suffered. The judge may decide on another form of remedy instead of paying this compensation or may add it to this compensation; in particular, may issue a decision condemning the attack and may rule on the publication of this decision.”
4. Supreme Court Decision
In its decision numbered 2014/56 E, 2015/1679 K, the General Assembly of the Supreme Court Civil Chambers decided to award moral damages for sharing personal data containing a person’s name without consent, also referencing the right to be forgotten.
Relevant part of the decision: “If the name of a person who was a victim of an event that occurred 4 years ago is clearly written in a book, it should be accepted that the right to be forgotten and consequently the plaintiff’s privacy have been violated. As stated in the European Union Court of Justice’s ‘Google Decision’, unless there are special reasons revealing a superior public interest, such as the important role the relevant data plays in public life and the public’s intense interest in the relevant data, personal data should not be clearly included in decisions taken for scientific works.”
During the discussions, minority members argued that there was no need to anonymize names appearing in court decisions, that trials are conducted openly except for exceptions, and that judgments are announced publicly, therefore privacy was not violated. However, this view was not accepted by the majority of the assembly on the grounds that “the issue is not whether names should be anonymized in court decisions, but whether they should be anonymized when decisions are included in books.”
Therefore, considering that the plaintiff’s name appearing in the book without anonymization violates the right to be forgotten and consequently the privacy of private life, it is necessary to accept that the conditions for moral compensation in favor of the plaintiff have been met.
PROVISIONS REGARDING THE PROCESSING AND PROTECTION OF PERSONAL DATA IN THE CRIMINAL PROCEDURE CODE
1. General Overview
Provisions regarding the processing of personal data are regulated in Articles 75, 76, 78, 80, 81, 82, 134, and 135 of the Criminal Procedure Code No. 5271 (CPC), in the Third Section titled “Observation, Examination, Investigation and Autopsy” of the Third Part titled “Testimony, Expert Examination and Investigation” of the First Book.
Article 80 of the CPC titled “Confidentiality of genetic examination results”:
“(1) The results of examinations conducted on samples taken according to the provisions of Articles 75, 76 and 78 are personal data and cannot be used for any other purpose; they cannot be given to another person by persons authorized to learn the file contents.
(2) This information is immediately destroyed in the presence of the Public Prosecutor in cases where the objection period for the decision of non-prosecution expires, the objection is rejected, acquittal or a decision of no punishment is given and becomes final, and this matter is recorded in minutes to be kept in the file.”
2. Information Constituting Personal Data and Obtaining Personal Data within the Scope of CPC
Articles 75, 76 and 78 of the Code regulate in which cases samples will be taken from the human body, and it is regulated that the data obtained from these samples are personal data, cannot be used for purposes other than their purpose, cannot be transferred to others by those authorized to examine the file, will be destroyed as a result of the expiration of the objection period for the decision of non-prosecution, rejection of objection, acquittal or a decision of no punishment being given and becoming final, and this matter will be determined by minutes and the minutes will be kept in the file.
Body Examination and Sample Collection
Article 75 – “Body examination of suspect or defendant and sample collection from the body”: For the purpose of obtaining evidence related to a crime, internal body examination may be performed on the suspect or defendant, or samples such as blood or similar biological samples, hair, saliva, nails may be taken from the body. Internal body examination or taking blood or similar biological samples from the body can only be performed by a physician or another healthcare professional. For crimes requiring imprisonment of less than two years as the upper limit, internal body examination cannot be performed on the person, and samples such as blood or similar biological samples, hair, saliva, nails cannot be taken from the person.
Article 76 – “Body examination of other persons and sample collection from the body”: For the purpose of obtaining evidence related to a crime, provisions are regulated regarding the ability to perform external or internal body examination on the victim’s body or to take samples such as blood or similar biological samples, hair, saliva, nails from the body. The provisions of this article will also apply when it is necessary to investigate the child’s lineage.
Molecular Genetic Examinations
Article 78 titled “Molecular genetic examinations” regulates that molecular genetic examinations may be performed on samples obtained in Articles 75 and 76 explained above, when necessary to determine lineage or whether the obtained evidence belongs to the suspect, defendant or victim. Examinations aimed at making other determinations on the taken samples other than the mentioned purposes are prohibited. Only a judge can decide on conducting molecular genetic examinations. However, in other cases, a judge’s decision or in cases where there is danger in delay, the Public Prosecutor can make the decision and subsequently submit the decision for approval to the court or judge within 24 hours. Additionally, in cases where it is necessary to take samples from the victim, the victim’s consent is also sufficient.
Article 81 of the CPC – “Determination of physical identity”:
“(1) For a crime requiring imprisonment of two years or more as the upper limit, if necessary for the identification of the suspect or defendant, photographs, body measurements, finger and palm prints, other characteristics located on the body that would facilitate identification, as well as voice and images are recorded by order of the Public Prosecutor and placed in the file related to investigation and prosecution procedures.
(2) In cases where the objection period for the decision of non-prosecution expires, the objection is rejected, acquittal or a decision of no punishment is given and becomes final, the said records are immediately destroyed in the presence of the Public Prosecutor and this matter is recorded in minutes.”
3. Regulation on Body Examination, Genetic Examinations and Determination of Physical Identity in Criminal Procedure
Since Article 82 of the CPC regarding body examination, genetic examinations and determination of physical identity explained above envisaged the issuance of a regulation, the Ministry of Justice issued the Regulation on Body Examination, Genetic Examinations and Determination of Physical Identity in Criminal Procedure on 01.06.2005.
The regulation contains detailed arrangements on internal body examination, external body examination, sample collection from the body, molecular genetic examinations, and determination of physical identity. The regulation stipulates that in case a conviction decision is made about the defendant, the defendant’s photograph, iris image, body measurements, dental prints, finger and palm prints, physical description information located on the body that would facilitate identification, body traces that can be used for identity determination left by organs such as ears and lips, voice and images, finger and palm prints which are special curved shapes of the skin on the inner surface of the hand, photographs and physical description information will be archived by law enforcement, and dental prints by the health institution performing this procedure.
⚠️ Important Note:
Although there is no provision in the CPC regarding the preservation of personal data of the defendant for whom a conviction decision has been made, the regulation of this matter in the Regulation may pose a problem in terms of the general principle in Article 20 of the Constitution that personal data can only be processed in cases provided by law or with the explicit consent of the person.
4. Processing of Personal Data Obtained as a Result of Various Protection Measures
Within the scope of Article 134 of the CPC titled “Search, copying and seizure in computers, computer programs and registries,” personal data of suspects, defendants, victims or third parties may be processed during the seizure of computers or computer registries.
Similarly, within the scope of Article 135 titled “Detection, interception and recording of communications,” personal data of suspects, defendants, victims or third parties will be processed while the defendant’s telecommunication is intercepted, recorded, and signal information is evaluated.
Within the scope of Article 140 titled “Surveillance with technical means,” when the suspect or defendant’s activities in public places and workplace are monitored with technical means and audio or video recordings are taken, their personal data will be processed, and personal data of victims or third parties in contact with the defendant will also be processed in addition to the defendant and suspect.
Legal Framework and Judicial Control
Within the scope of the CPC, it is regulated that the protection measures specified in Articles 134, 135 and 140 – “search, copying and seizure in computers, computer programs and registries,” “detection, interception and recording of communications” and “surveillance with technical means” – will be implemented by court decision, and in cases where there is danger in delay, the Public Prosecutor can also make the decision, but subsequently submit this decision for approval to the judge or court within 24 hours.
Legal regulation has been made for the processing of personal data in order to combat crime and criminals within the scope of the relevant articles, and this authority has been given to the judge, not being satisfied with legal regulation alone. However, personal data of individuals who have contact with defendants and suspects other than the act subject to crime may often be processed.
Critical Consideration: Personal data of individuals not related to the criminal act may be in the defendant’s computer or computer registries, or personal data of other individuals who communicate with the defendant/suspect but are not related to the crime will also be processed. Within the scope of personal data processing principles, this issue creates sensitivity for purpose-oriented processing to be realized, and we evaluate that effective measures should be taken and regulations should be made for the protection of personal data of persons other than defendants and suspects.
PROVISIONS REGARDING THE PROCESSING AND PROTECTION OF PERSONAL DATA IN THE TAX PROCEDURE LAW
1. General
The scope of the Tax Procedure Law is defined in Article 1 of the law. The law applies to taxes, fees, and charges entering the general budget except customs and monopoly taxes, as well as taxes, fees, and charges belonging to special provincial administrations and municipalities. According to Article 8 of the law, a taxpayer is a natural or legal person who is liable for tax debt under tax laws, and a tax responsible person is the person who is addressee to the creditor tax office regarding the payment of tax. It is understood from the text of the law that taxpayers and responsible parties will consist of natural and legal persons. Natural persons who are taxpayers and responsible parties under the scope of the law are obligated to share real estate information, vehicle information, information related to their commercial and economic situation with tax administrations and other institutions and organizations for the purpose of fulfilling tax obligations in relation to tax-generating events. Additionally, Article 8 of the Law also stipulates that every natural person and legal entity under Turkish Republic citizenship will be given a tax number.
2. Tax Confidentiality
This information falls within the scope of personal data, and Article 5 of the Tax Procedure Law has introduced regulations to ensure the confidentiality and secrecy of such information.
Tax Confidentiality Principle: The regulation under Article 5 titled “Tax Confidentiality” is a regulation for the protection of personal data for natural persons.
Article 5 of the law stipulates that officials dealing with tax transactions and audits, those working in tax courts, regional administrative courts and the Council of State, those participating in commissions established according to tax laws, and experts used in tax matters cannot disclose secrets or other matters that should remain confidential regarding the persons of taxpayers and persons related to taxpayers, their transaction and account situations, their business, enterprises, assets, or professions that they learn through their duties, and cannot use them for their own or third parties’ benefit. This prohibition will continue even if the above-mentioned persons leave these positions. The article also introduces some limitations to this prohibition.
In this context, in order to ensure tax security, the tax bases (including losses) declared by Income Tax taxpayers in their annual Income Tax returns and corporate taxpayers in their Corporate Tax returns, and the Income and Corporate Taxes levied on their declarations, along with the names and titles of taxpayers, will be announced through schedules posted in appropriate places of the tax office to which they are affiliated within the year the returns are submitted, and if the taxpayer is affiliated with an organization, this announcement will also be made there. The taxpayers’ declarations that form the basis for tax assessment, their finalized taxes and penalties, and the amounts of taxes and penalties that have become due but remain unpaid may be disclosed by the Ministry of Finance. The Ministry of Finance may delegate this authority to local offices. Additionally, information and documents requested in connection with judicial and administrative investigations conducted by public officials and information for banks regarding tax collection they will perform may be provided.
The procedures and principles regarding the provision of this information are determined by the Ministry of Finance. Reporting to professional organizations established by law and to unions and professional chambers established under Law No. 3568 of those who have been determined by tax audit reports to have issued or used fake or misleading documents will not be considered a violation of tax confidentiality. However, persons and institutions to whom information is provided must also comply with the prohibitions stipulated in this article. The Ministry of Finance is authorized to determine procedures related to the disclosure of information.
The provision of information that can be requested from taxpayers by public institutions and organizations under their relevant laws, which is directly related to the duties of institutions and organizations and is necessary and continuous for the performance of their duties, to these institutions and organizations will not be considered a violation of tax confidentiality. In this case, those to whom information is provided must comply with the prohibitions mentioned above and are obligated to take measures to ensure the protection of this information. The Ministry of Finance is authorized to determine the scope of information to be provided under this paragraph and the procedures and principles regarding information sharing.
3. Precedent Decision
Council of State 4th Chamber Decision No. 2013/928 E and 2013/6240 K:
“The protection of the confidentiality of taxpayers’ private lives is primarily a constitutional right. Article 20 of the Constitution, regulated in the fundamental rights and duties section, also contains provisions regarding privacy in general. The article text states that everyone has the right to demand respect for their private and family life, that the confidentiality of private and family life cannot be violated, that no one’s person, private papers and belongings can be searched and seized unless there is a court decision issued according to procedure based on one or more of the reasons of national security, public order, prevention of crime, protection of general health and general morals or protection of others’ rights and freedoms, and unless there is a written order from an authority authorized by law in cases where delay is dangerous for the same reasons, and in the last paragraph, that everyone has the right to request protection of personal data concerning themselves, that this right includes being informed about personal data concerning the person, accessing this data, requesting correction or deletion of this data and learning whether it is used for its purposes, that personal data can only be processed in cases provided by law or with the explicit consent of the person, and that the principles and procedures regarding the protection of personal data will be regulated by law.”
The court noted that as stated above, the protection of the confidentiality of information related to individuals’ private lives has been guaranteed within the scope of constitutional fundamental rights and freedoms. The principle of tax confidentiality has been included in tax law to protect this right during the taxation process. Article 5 of the Tax Procedure Law has prohibited persons who are obliged to comply with tax confidentiality from disclosing, using, and allowing third parties to use information obtained regarding taxpayers or persons related to taxpayers through their duties that should remain confidential. Tax confidentiality enables taxpayers to safely provide their confidential information to the tax office. Therefore, the non-provision of information about taxpayers cannot be included within the scope of this article, and it stated that tax confidentiality was introduced to enable taxpayers to provide their information and to ensure the guarantees of such information, and that tax confidentiality does not allow taxpayers not to provide their personal data to the tax office.
4. Sharing Personal Data with the Administration
Article 148 of the Tax Procedure Law contains the regulation: “Public administrations and institutions, taxpayers or other natural and legal persons conducting transactions with taxpayers are obligated to provide the information requested by the Ministry of Finance or those authorized to conduct tax audits. Information is requested in writing or orally. Those who do not provide orally requested information will be reminded in writing and given an appropriate period to respond.”
Exceptions to the regulation in Article 148 of the law have been introduced by Article 151. In this context, Article 151 stipulates that information regarding the nature of patients’ diseases cannot be requested from doctors, dentists, dentists, midwives, and health officers; information regarding matters and circumstances that lawyers and legal representatives have been informed of through their duties entrusted to them cannot be requested from lawyers and legal representatives, except for client names, attorney fees and expenses, and circumstances they have been informed of due to their capacities other than their capacity as lawyers or legal representatives; documents that would harm the confidentiality that the Post, Telegraph and Telephone Administration is obligated to maintain regarding communications cannot be requested; and apart from these, natural and legal persons from whom information is requested cannot avoid providing information.
Article 152 of the law stipulates that apart from the notification of deaths of taxpayers and responsible parties to tax offices by civil registration and land registry officials, Peace Judges, consulates, and neighborhood and village headmen, information provided by public administrations and institutions, taxpayers or other natural and legal persons conducting transactions with taxpayers will be kept secretly in intelligence archives, and who can benefit from these archives and in what manner will be determined by the Ministry of Finance. According to the law, confidentiality is the principle in storing this information collected by the Ministry of Finance. However, according to the law, determining the procedures and principles for storing information has been left to the discretion of the administration, which is contrary to the constitutional rule that matters related to fundamental rights should be regulated by law.
PROVISIONS REGARDING THE PROCESSING AND PROTECTION OF PERSONAL DATA IN THE CRIMINAL RECORDS LAW
1. General Overview
The Criminal Records Law No. 5352 entered into force on June 1, 2005. The purpose of the law is to determine the procedures and principles for collecting, classifying, evaluating, preserving information related to finalized criminal sentences and security measures using an automated processing system, and notifying relevant parties in the most expeditious and reliable manner when necessary.
2. Information Recorded in Criminal Records
All criminal record information that constitutes personal data, including records of Turkish citizens and foreigners who have committed crimes in Turkey, is maintained in the Central Criminal Records at the General Directorate of Criminal Records and Statistics of the Ministry of Justice. The information to be recorded in criminal records includes finalized imprisonment sentences, data regarding postponement of sentences, judicial fines, alternative sanctions to short-term imprisonment, deprivation of certain rights, decisions given due to withdrawal of complaint or effective remorse that completely eliminates criminal conviction with all its consequences, decisions regarding the determination that the statute of limitations for punishment has expired, laws regarding general or special amnesty, Presidential decisions regarding special amnesty, accessory punishments given according to the Military Criminal Code, and decisions regarding security measures imposed due to mental illness.
Important Note: Disciplinary punishments and administrative fines are not recorded in this system. Decisions regarding postponement of public prosecution and deferment of pronouncement of verdict are recorded only to be given upon request by courts, judges, or Chief Public Prosecutor’s Offices in connection with an investigation or prosecution.
3. Use of Criminal Record Data
Criminal record data is frequently used through regulations made by various legislation. It is a system applied in situations such as entry into civil service, acceptance to certain public positions, application of recidivism provisions in the criminal justice system, determination of candidate qualifications in elections, weapon license procedures, etc.
Criminal record information is provided by specifying the purpose of use to the relevant person or to their attorney provided it is clearly stated in the power of attorney, to public institutions and organizations, to professional organizations with public institution status, by Chief Public Prosecutor’s Offices in local criminal records, by district governorships, by embassies and consulates abroad, and by the Ministry of Justice General Directorate of Criminal Records and Statistics in central criminal records.
4. Archive Records
Information in criminal records is deleted and archived by the General Directorate of Criminal Records and Statistics in cases of completion of execution of punishment or security measure, withdrawal of complaint or effective remorse that completely eliminates criminal conviction with all its consequences, expiration of the statute of limitations for punishment, or general amnesty.
Archive Information Access:
Archive information is requested by specifying the purpose of use by the person themselves or their attorney provided it is clearly stated in the power of attorney, Chief Public Prosecutor’s Offices within the scope of an investigation or prosecution, judges or courts, authorized election boards, and relevant public institutions and organizations in cases shown in special laws.
Unless clearly stated in the law, criminal records and archive records of a relative cannot be requested in relation to a decision to be made or a transaction to be performed regarding a person, and this information cannot be used as a basis for depriving a person of any right. Criminal records and archive records related to those under eighteen years of age can only be requested by Chief Public Prosecutor’s Offices, judges, or courts for evaluation within the scope of investigation and prosecution.
5. Relevant Legislation
Article 11 – Confidentiality of Criminal Records and Archive Information: “Criminal records and archive information are confidential. This information cannot be disclosed by officials and cannot be used by persons, institutions and organizations to whom it is given according to the provisions of this Law for purposes other than the purpose for which it was given.”
Article 12 of the Law stipulates the following deletion periods:
1) Archive information is completely deleted:
a) Upon the death of the person concerned,
b) For convictions that cause deprivation of rights according to Article 76 of the Constitution and laws other than the Turkish Criminal Code, from the date when the conditions for archiving the record are met:
1. After fifteen years, provided that a decision to restore prohibited rights is taken,
2. After thirty years without requiring a decision to restore prohibited rights,
c) For other convictions, after five years from the date when the conditions for archiving the record are met.
2) In case the act is decriminalized by law, criminal records and archive records related to conviction for this crime are completely deleted without requiring a request.
3) In case of finalization of acquittal or non-prosecution decision given as a result of cassation in favor of law or renewal of trial, the criminal record and archive record related to the previous conviction decision is completely deleted.
4) Records related to security measures imposed due to mental illness are completely deleted upon completion of their execution.
Article 13 – Query Authorization:
According to Article 13 of the Law, courts, judges, and Chief Public Prosecutor’s Offices can directly query criminal records and archive records within the scope of investigation and prosecution of a crime, while law enforcement and other public institutions and organizations can query with the approval of the Minister of Justice. Public institutions and organizations can query criminal records and archive records about relevant persons within the framework of procedures and principles determined by the Ministry of Justice in cases where legislation provides for obtaining criminal records and archive records. Natural persons can also query their own criminal records and archive records within the framework of procedures and principles determined by the Ministry of Justice and using secure identity verification tools, and can submit the results to the relevant authority in physical or electronic format.
Atty. Yalçın TORUN LL.M.
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