The Violation of Privacy in Turkish Criminal Law and Comparative Law (I)

SUMMARY

Protection of privacy is one of the essential to any discussion of human dignity. This study will contain protection of privacy via criminal law sanctions. In Turkey, privacy violations are regulated under the articles 132 through 140 of Turkish Criminal Code. Privacy of communication, personal data and life are protected under the articles in question. In this paper, types of crime regarding the implementation of Turkish Criminal Law and German Criminal Law provisions will be examined in a comparative perspective by examining the provisions of the Criminal Codes of some other European Countries, as well, and privacy in light of European Human Rights Court decisions will also be evaluated and discussed.

1- Introduction

Personal privacy can be defined simply as the “guaranteeing individuals an area free from external interference where they can freely build and develop their self”[1].

By saying that “Everyone has the right to life and liberty to develop tangible and intangible assets”, the 17thArticle of the Turkish Constitution, states that the right to life which forms the first and indivisible field of human existence only gains meaning with the security of personhood.

In this sense, the right to control the physical manifestation of the self is considered within the scope of the right to life. The right to private life and respect of private life forms the basic field of the right to security and all other rights. Through this right, people have a protected inner space depending on individual choices and protected from interventions of the outside world-both regarding state intervention and the intervention of other citizens. The right to respect for private life is also important for other rights like; freedom of thought, conscience and religion, freedom of expression and the right to education[2]. The personal choices of people and their desire to live according to the meaning they attribute to their life and themselves, requires the recognition of an inviolable core area. If that is not provided, it wouldn’t be possible for individuals to develop both their tangible and intangible assets.

The Turkish Constitution protects the right to private life in terms of the rights to; respect for private and family life and personal data (art.20), respect of the sanctity of the home (art. 21) and respect for correspondence (art. 22). Especially the right to protection of personal data in especially electronic forms has been added to the Constitution by the Law №5982 dated May 7, 2010 after the referendum of September 12, 2010.

The 8th Article of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights — ECHR) doesn’t give a special definition of “private life”; however, in terms of this article it protects the rights with respect to “private life”, “family life”, “home” and “correspondence”.

Under The Turkish Criminal Code (Law no. 5237) which entered into force on June 1, 2005, within the second chapter entitled “Offences Against Individuals”, the ninth section regulates “Offences Against Privacy and Secrecy of Life” which encompass “violating the confidentiality of communications”(art. 132), “Eavesdropping and Recording of conversations between people”(art. 133), “violating the confidentiality of private life” (art. 134), “recording of personal data”(art. 135), “unlawful delivery or acquisition of data” (art. 136) and “failure to destroy data”(art. 138). Under the Turkish Criminal Code, other concepts and individuals’ rights concerning private life, are protected under different sections within the offences against individuals. For example, while sexual freedom (art. 102–105), inviolability of home (art. 116) and the freedom of correspondence (art. 124) are protected under section seven; honor and dignity are protected under section eight. In this paper, we are going to make a statement about the articles stated in section nine, and we will also make reference to other articles asnecessary.

It has to be mentioned that, the German Criminal Code, which is one of codes that has influenced the Turkish Criminal Code, has a similar system. The fifteenth chapter of that Code regulates “Offences Against Privacy and Secrecy of Life” and the offenses held under this chapter are; Violation of the Confidentiality of the Spoken Word (sec. 201), Data Espionage (sec. 202a), Violation of Private Secrets (sec. 203), Exploitation of Secrets of Another (sec. 204), Application for Criminal Prosecution (sec. 205), Violation of Postal or Telecommunications Confidentiality (sec. 206). However, under the Code, Breach of the peace of the home (sec. 123–124) is held under chapter seven which regulates crimes against public order, crimes against sexual self-determination (sec. 174–180) under chapter thirteen and crimes against dignity (sec. 185–193) under chapter fourteen. Within this paper, where necessary, we will make reference to German Criminal Code provisions on offences against privacy and secrecy of life.

First, we are going to analyze the concept of “private life” protected under the 8thArticle of the ECHR. For the interpretation of the provisions of the Turkish Criminal Code, this information about the content of the right is sure to be enlightening.

2- Protection of Private Life Under Article 8 Of European Convention On Human Rights (ECHR)

a- General Information

The 8th Article of the Convention states that; “(1) Everyone has the right to respect for his private and family life, his home and his correspondence.(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

According to this article, States are not only obliged to prevent arbitrary interventions made against these rights protected by this article. It also has the obligation of taking effective measures in order to protect these rights. Moreover, this obligation does not only cover interferences of public authorities but also the interferences of individuals (horizontal application)[3].

It is possible for states to make restrictions in terms of paragraph 2, article 8. However, in order to be a legitimate restriction, the intervention must be based on one of the reasons indicated in paragraph two of article 8, must be prescribed by law, or in accordance with law and necessary in a democratic society. Criteria like “proportionality” and “the compelling public necessity for intervention” must be discussed when analyzing whether any intervention is “necessary in a democratic society[4].”

b– Protection of Private Life

Due to the difficulty of making a definition of private life, the European Court Of Human Rights has analyzed each case separately and has decided whether the case is within the scope of private life and if it is within its scope, whether the interference was legitimate.

According to the Court, private life covers individuals’ physical and moral integrity (Costello-Roberts v. U.K., 1993)[5]. In this concept, “corporal punishment”, “disciplinary measures at schools” and “mandatory medical testing” (X and Y v. the Netherlands, 26.03.1985), “recording and surveillance of sounds and images” (M.M v. the Netherlands, 2003; Van Vondel v. the Netherlands, 2007), “the right to determination of one’s own name” (Burghartz v. Switzerland 21.10.1992; Ünal Tekeli v. Turkey, 16.11.2004; Güzel v. Turkey, 21.10.2008), “sexual freedom, sexual choices” ((Medinos v. Cyprus 22.04.1992; B. v. France 25.03.1993), “search of places belonging to individuals” (L.M. v. Italy, 08.02.2005; Niemietz v. Germany, 16.12.1992), “misrepresentation of a person’s name, photograph, name and fame, lifestyle to the public” (Hannover v. Germany, 24.06.2004[6]), “unlawful monitoring of communication through telecommunication by public authorities or private parties” (Copland v. U.K., 03.04.2007; Peev v. Bulgaria, 26.07.2007) are related to the protection of private life[7]. Similarly, the protection of personal information that individuals do not wish to and does not have to share with public and which only concern individuals’ inner world, is of great importance for the protection of private life[8].

c — Protection of Family Life

The concept of family protected by the 8tharticle of the Convention covers the legitimacy of relationships between parents and children, grandparents and grandchildren, husband and wife, adoptive parents and adopted children. For the protection of the family life the features of each case are decisive[9]. Unions without marriage can also be protected under the roof of family life (for example Marckx v. Belgium, 13.06.1979)[10]. Although “living together” is considered important, it is not one of the compulsory elements for forming a family and for being protected within this article.For this reason, even if close relatives do not live together, their blood, spiritual and emotional, economic and other ties, imply the existence of the family institution. Family relationship is also considered to be established in the case of adoption. Along with emphasizing the protection of ties between a child’s and its family, the Court, especially in its decisions concerning the establishment of a personal relationship between children and their family, may consider limitations imposed in this direction as “legitimate” for the interest of the child. For example, in its decision of Hokkanen v. Finland (23.09.1994), the Court has stated that preventing the father of seeing his child who was a minor and who had been in the custody of his grandparents did not constitute a breach under the Convention. Likewise, in its Soderback v. Sweden decision (28.10.1998), the Court considered that the fact that the new husband of the applicant’s ex-wife had adopted their child without the applicant’s authorization did not constitute a breach under the Convention considering the child’s interests[11].

The Court has stated that there was a violation under the article 8 where the children’s custody was removed from parents as a result of mistreatment, the placement of children in a welfare institution which resulted in a total cessation of all communication between parents and children (Scozzari-Giunta v. Italy, 17.07.2000; Olsson v. Sweden, 24.03.1988; M. and R. Anderson v. Sweden, 25.02.1992)[12].

Along with emphasizing the importance of keeping family members together, the Court doesn’t attribute signatory states an absolute obligation of allowing foreigners to remain in the country, adoption of foreigners or deportation of foreigners (Gül v. Switzerland, 19.02.1996)[13]. However, depending on the nature of the case, the Court states that, states have an obligation to allow family members to live together and other than in untenable circumstances, abstain from interferences, which would affect the integrity and unity of the family[14].

The Court considers that there is a violation of the right to respect for family life and home in cases where family members’ health and daily lives are adversely affected due to noise, smoke and bad odors which occur around their domicile (Lopez Ostra v. Spain, 09.12.1994; Ledyayeva v. Russia, 26.10.2006)[15].

d — Protection of Home

Home is the place where people maintain their livelihoods and take shelter. Places where professional and commercial activity are also protected within this context (Niemetz v. Germany, 16.12.1992)[16]. Under the 8tharticle, the protection is not about property rights related to housing, but about the peace of inhabitants. For that reason, preventing people from living in a particular place, forcibly removing people from their home and unlawful search of the residence constitute a breach under the scope of this right. In this sense, government should avoid unlawful interventions on peoples’ homes and should take effective measures against unlawful interventions of other individuals. For example, in H.M. v. Turkey (2006), the Court has stated that the unlawful search carried out in the applicant’s home was a violation of the sanctity of the home.

e — Protection of the confidentiality of correspondence

Communication between individuals conducted by all kinds of methods is protected[17]. Mass communication is considered within the scope of freedom of expression regulated by the 10tharticle of the Convention[18]. Deficiencies in the conduct of the postal services are outside the scope of the right to respect for correspondence (De Wilde, Ooms and Versyn v. Belgium, 19.07.1969, X. v. Germany, 03.10.1979)[19].

The principal of respect for correspondence, does not only cover individuals’ correspondence with other people concerning their private relationships, but also includes the correspondence and communication in professional life (Miailhe v. France 1993)[20].

In addition to current interventions like the opening of letters and the surveillance of phone calls, interventions to potential correspondence (for example the restrictions on the correspondence between persons who are in prison and others outside prison) are also considered under this article[21].

The fact that the liberty of people who are in prison has been legally restricted does not make all interventions on freedom of communication or privacy of communications lawful. In these cases, the Court analyzes whether one of the criteria provided in the second paragraph of Article 8 is present. The same criterion is applied for the Criminal Procedure Law in the case of the application of the seizure of mail deliveries and the listening to phone calls for the prevention of crimes or arrest of offenders[22]. For these limitations to be lawful, they must be; in accordance with law, including adequate and effective guarantees against arbitrary interferences, defined for a limited period (In its decision Prado Bugallo v. Spain (2003) the Court has decided that the fact that the law allowing telephone tapping did not contain specific regulations on the crimes and limitations on the duration of the tapping constituted a violation of the Convention), minimizing the margin of appreciation as much as possible and prescribed for legitimate purposes.

[1]Clayton, Richard-Tomlinson, Hugh,Privacy and Freedom of Expression, Oxford 2006, p.37.

[2]Clayton -Tomlinson, p.37,38.

[3]Clayton-Tomlinson, p. 48 etal. The European Court of Human Rights has stated in its decision of H.M v. Turkey (8.8.2006), that considering the allegations that civilian persons had introduced themselves as police officers and had searched the house of the applicant without a search warrant, the fact that prosecutor who was investigating the case decided not to prosecute without conducing a proper investigation, constituted a violation on the grounds that “Turkey had failed to protect the rights covered under article 8”, see; Tezcan, Durmuş-Erdem, Mustafa Ruhan-Sancakdar, Oğuz-Önok, Rıfat Murat, İnsan Hakları El Kitabı, 4th Edition, Ankara 2011, p.275. The cases Leander v. Sweden, 26.03.1987, A 116; Gaskin v. U.K., 7.7.1989, A 160 refer to the positive obligation of the state. See: Gözübüyük, Şeref-Gölcüklü, Feyyaz,Avrupa İnsan Hakları Sözleşmesi ve Uygulaması, 9thEdition, Ankara 2011, p.332.

[4]Tezcan-Erdem-Sancakdar-Önok, p.276, 277; Gözübüyük-Gölcüklü, p.331,332; Ünal, Şeref, Avrupa İnsan Hakları Sözleşmesi (İnsan Haklarının Uluslararası İlkeleri), Ankara 2001, p. 220 et al.

[5]Clayton-Tomlinson, p. 38.

[6]In this case, the Princess of Monaco Caroline, has started a judicial process in order to stop the publication of her photos, however her demand has been rejected and she has applied to the European Court of Human Rights claiming that her right to respect for privacy had been violated. The Court, evaluating the balance between the public and private interest, has analyzed whether the publication was legitimate. Citing facts about politicians may be instrumental in the debates that can arise in a democratic society. However intimate details about the private life of the applicant who does not exercise an official function, have been targeted only to satisfy the curiosity of the public. In that case, it is impossible to refer to controversial issues concerning society, within the scope of the duties of the press in a democratic society. For that reason, the Court has decided that the right to respect the privacy of the applicant had been violated. See, Tezcan-Erdem-Sancakdar-Önok, p.288,289.

[7]Clayton-Tomlinson, p. 38; Gözübüyük-Gölcüklü, p.334, 335; Tezcan-Erdem-Sancakdar-Önok, p.279; Ünal, p.218 et al.; Cooper, Jonathan, Kolluk Hizmetleri ve İnsan Hakları: Kolluk ve Özel Soruşturma Teknikleri, (Presentation Work), in: Ceza Adalet Sisteminde Suçla Mücadelede Yeni Yaklaşımlar Projesi, 17 Ekim 2008, Ankara, p.12,13.

[8]In the case Segersted-Wiberg and others v. Sweden (6.6.2006), the applicants’ demand of seeing the records kept by the Swedish Security Police had been refused on the grounds of “prevention of crime and the presence of threat to the national security”. The Court has found that a limitation brought by law and containing specific definitions about the terms “prevention of crime and the protection of national security” was legitimate. However, the Court has decided that, according to the information in the file, the storing of other applicants’ data was not legitimate. In Panteleyenko v. Ukraine (29.06.2006)theCourt has decided that the fact that information about the psychiatric condition of the applicant which was not directly relevant for the trial had been read by the judge during a session of the trial opened to the public, constituted a violation of the right to respect for private life. See, Tezcan-Erdem-Sancakdar-Önok, p.279.

[9] Gözübüyük-Gölcüklü, p.336, 337; Tezcan-Erdem-Sancakdar-Önok, p.290; Ünal, p.215,216.

[10]Gözübüyük-Gölcüklü, p.336, 337.

[11]Gözübüyük-Gölcüklü, p.337–340; Tezcan-Erdem-Sancakdar-Önok, p.290–293; Ünal, p.215,216.

[12]Gözübüyük-Gölcüklü, p.338–340; Ünal, p.216.

[13]Gözübüyük-Gölcüklü, p.338,339; Ünal, p.215.

[14]Ünal,p.215, 216.

[15]Gözübüyük-Gölcüklü, p.339.

[16]The 116tharticle of the Turkish Criminal Code, in addition to home and its attachments, also protects the “business places and their attachments, other than ordinary places of which the entrance is not permissible”; though a lower punishment is foreseen for illegal entrance in these places.

[17]The listening or recording of individuals’ face-to-face interviews in public or in enclosed areas does not violate the right in respect to correspondence, but the right to respect of private life (Hewitson v. U.K., 2003).

[18]Gözübüyük-Gölcüklü, p.341.

[19]Gözübüyük-Gölcüklü, p.342.

[20]Cooper, p.41.

[21]Cooper, p.41,42.

[22]These principles are mentioned in these cases: Klass v. Germany (1978), Huvig v. France (1990), Kruslin v. France (1990), Valenzuela Contreras v. Spain (1998), Khan v. U.K. (2000), Wood v. U.K. (2004).