Events
The applicant filed a criminal complaint with the Chief Public Prosecutor’s Office against M.R.A., stating that his conversation about a debt relationship had been recorded in a non-public environment in a planned manner and with criminal intent and that this recording had been submitted to a criminal investigation file in which he was a suspect. The Chief Public Prosecutor’s Office concluded that the suspect had acted with the motive of presenting evidence regarding the offences allegedly committed by the applicant. The Chief Public Prosecutor’s Office decided that there was no room for prosecution on behalf of the public, stating that the applicant did not discuss anything that was in the private life of the applicant and violated the confidentiality of private life, that the element of intent did not occur in recording the conversation in question and presenting it as evidence in the investigation, and that there are decisions of the Court of Cassation in this direction. The applicant’s objection to the aforementioned decision was rejected by the criminal court of peace.
Allegations
The applicant claimed that his right to protection of personal data was violated because the investigation into his complaint about the unlawful recording of a non-public conversation was not conducted in accordance with the positive obligations of the state.
The Court’s Assessment
In the concrete case, the public prosecutor’s office has not been able to present a convincing approach that the procedure of obtaining and using the audio recording, which was obtained and used against the applicant’s consent, was not contrary to the applicant’s justified expectation for the protection of his fundamental rights. Indeed, although it is stated in the decision on non-prosecution that the persons who obtained the audio recording had a legitimate purpose and that there was no criminal intent, no assessment was made as to how the said actions, which were carried out against the consent of the applicant, affected his personal data and private life.
However, the decisions referred to a decision of the Court of Cassation, which recognised that there is a reason for compliance with the law under certain conditions in certain acts that constitute an attack on private life and personal data. It is considered that the boundaries of the conditions set out in the aforementioned Court of Cassation judgement are unclear in a way to leave the field of private life unprotected. In addition, in the decisions subject to the present application, it is not even discussed how the conditions in question are fulfilled in the concrete case. Again, no clear assessment that takes into account constitutional guarantees has been made as to whether the method that constitutes an attack on the applicant’s private life and personal data is proportionate and whether the intended purpose can be achieved by different methods. It is sufficient to refer to a decision, the limits of which are not clear and the application of which may vary according to the case, and no effort has been made to fairly balance the conflicting interests that exist in the concrete case. It has been assessed that such an approach, which gives absolute primacy to the purpose of obtaining evidence, would categorically lead to the protection of such attacks before the law and leave personal data and private life, which are constitutionally guaranteed, unprotected.
In addition, it is also incompatible with constitutional guarantees that the judgements are concluded by evaluating the content of the conversations in terms of whether the content of the conversations is related to private life or not, and that justifications are made in a way that means that non-public conversations are completely excluded from the protection area of Article 20 of the Constitution. The approach in question excludes the conversations made in a non-public environment from the field of private life as a whole. In addition to these issues, the fact that the applicant’s requests to determine whether there were any cuts or additions in the audio recording were not met, and the fact that the information of other relevant persons mentioned in relation to the allegation that the audio recording was made in a planned manner was not consulted does not ensure the openness of the investigation and shows that the applicant was not sufficiently benefited from procedural guarantees during the investigation process.
For these reasons, it has been assessed that the decisions made in the process subject to the concrete application do not contain relevant and sufficient justification to protect the guarantees contained in the applicant’s right to request the protection of personal data. As a result, it has been concluded that the conditions required by the positive obligation to be undertaken by public authorities have not been fulfilled in the concrete case.
The Constitutional Court decided that the right to request protection of personal data was violated for the reasons explained.
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