INSIGHTS

In The Know.

April 2022 – On 7 April 2022, the Constitutional Court of Turkey has concluded a case on the recording of personal letters of inmates through the Official National Judiciary Informatics System (the “System”), which is an e-justice system that covers all judicial institutions and other governmental departments. In its decision, the Constitutional Court unanimously ruled that the right to privacy and freedom of communication of the Applicant has been violated.

What is the background of the case?

Before the Applicant applied to the Constitutional Court, the following took place:

• The Applicant is an inmate, and correspondence (letters, documents, faxes, etc.) sent to the Applicant and/or received by the Applicant in prison is audited in accordance with the relevant regulatory acts.
• Suspicious correspondence is kept in the penal institution, while correspondence not deemed suspicious is delivered or sent to the addressee.
• With the circular of the General Directorate of Prisons and Detention Houses issued under the state of emergency in 2016, it became possible to upload copies of all inmate correspondence into the System, unless the correspondences is with official authorities or an inmate’s lawyers.
• The Council of State decided to suspend the execution of this circular in 2019; however, the practice of recording correspondence has continued.
• The Applicant requested the judge to stop the recording of his/her correspondence in the System, but this request was rejected on the grounds that the recording is conducted in accordance with the law and does not violate the Constitution.
• Thereupon, the Applicant appealed to the criminal court to object to the judge’s decision. However, the court affirmed the previous decision. Therefore, the Applicant applied to the Constitutional Court.

The Constitutional Court finds the current practice unlawful!

The Constitutional Court has underlined that only laws can restrict fundamental rights and freedoms. The Constitutional Court also outlined that in case of interference with a fundamental right and freedom, it is necessary to consider whether it is envisaged by legislation or not, and whether such interference constitutes a violation.

In this case, although the Constitutional Court has stated that there are legal regulations that allow the inmates’ correspondence to be recorded in the System, the legal status of a "circular” is not sufficient to restrict fundamental rights and freedoms.

In this context, the Constitutional Court pointed out that the following issues have to be regulated by law in order to record the personal data of inmates:

• Scope of the systematic recording of correspondence;
• Principles regarding the protection of personal data contained in the correspondence;
• Retention period of correspondence recorded in the System;
• Third party access to correspondence;
• Destruction of recorded correspondence and confidentiality of personal data.

In conclusion, as the issues outlined above were not regulated by law in this specific case, the Constitution Court has concluded that there is no legal basis for the interference with the right to privacy and freedom of communication. Therefore, the Constitutional Court has ruled that the right to privacy and freedom of communication of the Applicant has been violated.

You can find the decision here (in Turkish only).

For more information please contact Ceren Ceyhan, Associate, at cceyhan@gentemizerozer.com, and Hatice Nur Arslan, Legal Trainee, at narslan@gentemizerozer.com.