Data protection: A recent decision by the Turkish Constitutional Court

Turkish Constitutional Court has recently rejected an application of a law enforcement officer by stating that there was no disproportion in the penalty of dismissal from the profession due to his unlawful viewing of personal data. View the full Pekin Bayar Mizrahi Law Firm article, “Turkish Constitutional Court rejects law enforcement officer’s dismissal appeal."

In recent days, Turkish Constitutional Court (“TCC”) decided on the application made by the applicant, with the claim that the expression of “…to make an inquiry…” found in subparagraph (aa) of paragraph (6) of Article 8 of the Law on the Adoption of the Decree-Law on General Law Enforcement Disciplinary Provisions numbered 7068, which regulates the penalty given to the applicant, a public official (law enforcement officer) who was sentenced to dismissal from profession on the grounds that he displayed personal data unlawfully, was against the constitution.

The applicant stated that "there is no doubt that the act of making an unauthorized inquiry about persons through the system requires disciplinary punishment, but the fact that the act of simply viewing personal data is considered the same as acts such as disseminating and disclosing this data and punishing them with dismissal is incompatible with the principle of proportionality, which is a requirement of the rule of law, that there is no fair balance between the act and the disciplinary punishment foreseen to this act, that therefore, the said rule is against the constitution on the ground that the aforementioned rule contradicts with Article 2 of the Constitution.

The Constitutional Court, in its decision, noted that it should be determined whether the unlawful viewing of personal data by public personnel is related to the qualifications required by the title of public official, by emphasizing that the right to entry into public services specified in Article 70 of the Constitution is not regulated as an unlimited right, that therefore, the legislator has been given the authority to set various criteria as to whether the personnel, to be employed, is suitable for the qualifications of the job. 

In this regard, it was concluded by the TCC that the violation of the right to the protection of personal data, which is protected by Article 20 of the Constitution, by the public official, who is responsible for protecting and observing the Constitution before anyone else, in accordance with Article 129 of the Constitution, is also incompatible with the principle of the rule of law. Therefore, the TCC has rejected the application by stating that acting in accordance with the guarantees in the Constitution regarding the protection of personal data is one of the qualifications required for being a public official and that there was no disproportion in the penalty of dismissal from profession for this reason, also because there was no obstacle to the applicant's employment in other public institutions if he meets the necessary conditions. TCC thereby ruled that the expression “…to make an inquiry…” in subparagraph (aa) of paragraph (6) of Article 8 of the Law on the Adoption of the Decree-Law on General Law Enforcement Disciplinary Provisions numbered 7068 was not against the Constitution.