The Violation of Privacy in Turkish Criminal Law and Comparative Law (II)
1- Crimes violating the confidentiality of communications
The 132th article of the Turkish Criminal Code protects the confidentiality of communications by stating that[1];“(1) Any person who violates the confidentiality of communication between parties is punishable with imprisonment from one year to three years. If any violation of confidentiality is done via the recording of the contents of communication, the penalty to be imposed shall be increased by one fold.
(2) Any person who unlawfully discloses the contents of communication between any person is to be punished with imprisonment from two year to five years.
(3) Any person who unlawfullypubliclydiscloses the content of the communication between himself and others without obtaining their consent, is punishable with imprisonment from one to three years. (Sentence Added on 2 July 2012 — By Article 79 of the Law no. 6352). Where such conversation is published in the press or broadcasted, the penalty to be imposed shall be the same.”
(4) (Abolished on 2 July 2012 — by article 79 of the Law no. 6352)[2]”.
The article defines three separate and independent types of crime. The first paragraph regulates “the violation of privacy in communication”, the second paragraph regulates the “disclosure of communication contents” and the third paragraph regulates the “disclosure ofthe content of communication between himself and others”. In these types of crimes, only the privacy of personal communications through various modes is protected[3].
These types of crimes are regulated between the articles 202 and 206[4]of the German Criminal Code. The article 202 of the German Criminal Code regulates the “Violation of the Confidentiality of Letters” by stating that;“(1) Whoever, without authorization:
1. opens a sealed letter or another sealed document that was not intended to come to his attention; or
2. obtains knowledge of the content of such a document without opening the seal by using technical means,
shall be punished with imprisonment for not more than one year or a fine if the act is not punishable under Section 206.
(2) Whoever, without authorization, obtains knowledge of the contents of a document, that was not intended to come to his attention and which was specially protected by means of a sealed container from coming to someone’s attention, after opening the container, shall be similarly punished.
(3) An illustration shall be the equivalent of a document within the meaning of subsections (1) and (2)”.
The article 206 of the German Criminal Code sanctions the violation of the postal or telecommunications confidentiality especially by the employees of an enterprise in the business of providing postal or telecommunications service or public officials. The 5thparagraph of this article contains an important regulation whose equivalent does not exist in the Turkish Criminal Code. According to this paragraph “The impress and broadcast’s circumstances of the postal operations of particular persons as well as the content of pieces of mail are subject to postal confidentiality. The content of telecommunications and their impress and broadcast’s circumstances, especially the fact, whether someone has participated in, or is participating in a telecommunications event, are subject to telecommunications confidentiality. Telecommunications confidentiality also extends to the impress and broadcast’s circumstances of unsuccessful attempt to make a connection.” While the privacy of the communication is protected by the 132th article of the Turkish Criminal Code, for example there is no protection in the case of one of the persons is one of the parties of the communication.
The article 226–15 of the French Criminal Code states that “Maliciously opening, destroying, delaying or diverting of correspondence sent to a third party, whether or not it arrives at its destination, or fraudulently gaining knowledge of it, is punished by one year’s imprisonment and a fine of €45,000.
The same penalty applies to the malicious interception, diversion, use or disclosure of correspondence sent, transmitted or received by means of telecommunication, or the setting up of a device designed to produce such interceptions.”
According to the 179th article of the Swiss Criminal Code, “Any person who without authority opens a sealed document or sealed mail in order to obtain knowledge of its content, any person who disseminates or makes use of information he has obtained by opening a sealed document or sealed mail that was not intended for him, shall on complaint be liable to a fine.”
If this crime is committed by “Any person who in his capacity as a public official, employee or auxiliary of an organization providing postal or telecommunications services”, that is regulated as a separate crime in the article 321ter of the Swiss Criminal Code.
In Turkish Criminal Code, first of all, the content of communications between persons does not need to necessarily involve a “secret.” What is important is the occurrence of private communication[5]between at least two people[6]; regardless of the means of communication undertaken be it post, telephone, telegraph, fax, e-mail. However, the tapping and/or the recording of communications realized through direct face-to-face communication without any intermediary devices are not protected under the scope of the 132th article; but under the 133th article of the Turkish Criminal Code[7]. Communication contents which are not of a personal nature like posters, brochures or user guides for advertising purposes do not enjoy the protection level provided by this article. The content of the communication must contain a minimum level of personal information, symbols, emotions or thoughts[8]. For this reason, a package containing any item is not protected in terms of breach of confidentiality. If this kind of package is opened and the item inside it is taken, this may give rise to the crime of theft (Turkish Criminal Code, art. 141, 142), but is not itself a violation of privacy.
A person who is not one of the parties of the communication may also commit the crimes of “violation of privacy of communication” and “disclosure of the content of the communication” (art. 132/1–2). The parties of the communication are the victims of these crimes. However, according to the third paragraph of the article, the offender is the one who discloses the content of the communication made between himself and others without the consent of those other parties (victims).
The first paragraph of the article sanctions the “violation of privacy of communication.” The “violation of privacy” means that the content of the communication comes to the knowledge of a person who is not one of the parties of this communication by means of listening or seeing. It is not necessary that the offender understand the content of the communication he has heard or seen. An encrypted communication or a communication in a different language that cannot be understood by the offender can be given as an example[9]. However, a communication’s privacy cannot be violated by a hearing-impaired person by listening or by a visually-impaired person by seeing[10]. The sanction is more severe if the communication is recorded through any means (art. 132/1). As recording a communication constitutes a violation of privacy in any case, this paragraph of the article foresees a more severe sanction would be applied even if a telephone communication between two people has been recorded but to which has not been listened. Access by a third person to communication between two persons constitutes a violation of the privacy in all circumstances[11]. Record keeping of the content accessed (for example photocopying letters or recording telephone communications by a device) constitutes a more severe violation of the right to respect of privacy in communication of the victim.
The second paragraph of the article sanctions the “disclosure of the content of the communication[12].” Disclosure means giving information to third parties about the content of communication[13]. To be considered disclosure, it is not necessary to perform the disclosure publicly, providing information to only one person is sufficient[14]. The person who performs the act of disclosure is the one who has knowledge about the content of the communication. If that person has acquired this knowledge by violating the privacy of communication, this results in the occurrence of the crime regulated in the first paragraph of the 132ndarticle; because it is also possible to be informed about communication by lawful means. For example, the tapping and recording of telephone communications with the permission of a judge based on the framework of legal regulations is certainly legitimate. However, except as legitimized by law, the disclosure of these recordings will result in the occurrence of the crime regulated in the second paragraph of the 132ndarticle[15]. If the recordings are presented in Court or to a prosecutor and played or read during a session of a trial, this will not constitute such a crime. On the other hand, the public disclosure of these recordings (for example on TV or in newspapers) during investigation, even if they had been recorded lawfully, will result in the occurrence of this crime.
To communicate the whole content of the communication is not necessary for the establishment of “disclosure.” Disclosing only a part of the content is sufficient to be considered a crime. For disclosure to occur, it is not necessary that the content of the communication to be recorded with a device. A person can perform this act simply by telling what he has seen, heard or read.
The third paragraph sanctions the “unlawfully disclosure ofthe content of the communication between himself and others”. Indeed, the parties of a communication trust each other thinking that the communication between them will remain secret and will not be divulged to others. So, this crime sanctions the violation of this trust[16]. For this crime to occur, the disclosure must be made publicly. Publicly is to commit an act in a way that many people would become aware of it. In this regard, this crime will not occur if one person lets another person read a letter without the consent and knowledge of the person to whom the letter was addressed. On the other hand, this crime will occur; if the letter is publicly read, hanged in a place where everyone can read it or spread through press and broadcast without the consent of the person to whom the letter was addressed. However, this conversation is published in the press or broadcasted, the penalty to be imposed shall be the same.
As a qualified element of this offense; by a public officer or due influence based on public office (art. 137/1-a) or by exploiting the advantages of a performed profession or art (art. 137/1-b), the punishment is increased by one half.
In terms of the subjective element of the crime, this crime can only be committed deliberately. In this regard, the execution of these acts by the violation of the obligation of attention and care (by negligence) shall not constitute a crime. The crime regulated in the first paragraph of this article can also be committed by probable intent (Turkish Criminal Code, art. 21/2). Considering the term “unlawful disclosure” in the second paragraph, unlawfulness has been specified. Unlawfulness is one of the elements of the offence. However, if the text of the law contains terms such as “unlawfully” (for ex. 132/2, 3), unlawfulness is considered as part of the element of “typicality”. Where unlawfulness is considered as part of the element of typicality, the offender must know that his act is unlawful; so, he must act with direct intent. As a result, the offender must know that the act he is committing is unlawful and so he has to act through directintent. As to the act regulated in the third paragraph, the act must be committed by direct intent.
For these crimes, the consent of the person concerned and performance of a provision of law (For example the monitoring of communication through telecommunications[17]or the seizure of letters under the Turkish Criminal Procedure Code) are legal based on the finding of just cause.
Security precautions (related to confiscation and cancellation of the activity permission) specific to legal entities shall be imposed in the case of committed of this offence by legal entities (art 140) .
Prosecution for these crimes is bound to complaint.
[1]By Article 79 of the Law no. 6352 dated 2 July 2012, the expression of “a penalty of imprisonment of a term of six months of two years or judicial fine”was amended as “a penalty of imprisonment of a term of one to three years” in paragraph 1; the expression of “a penalty of imprisonment for a term of one to three years” was amended as “the penalty to be imposed shall be increased by one fold”in paragraph 1; the expression of “a penalty of imprisonment for a term of one to three years” was amended as “a penalty of imprisonment for a term of two to five years”in paragraph 2; the expression of “a penalty of imprisonment for a term of six months to two or a judicial fine”was amended as “a penalty of imprisonment for a term of one to three years”in paragraph 3; the term of “unlawfully” was added to the same paragraph.
[2]Abolished text on 2 July 2012 by article 79 of the Law no. 6352 as follows: “The punishment determined for this offense can be increased by one half in case of disclosure of the contents of communication between the Individuals through press and broadcast”.
[3]The prevention of communication between people violates the paragraphs 1 and 2 of the 124tharticle of the Turkish Criminal Code (for example lacerating letters in the mailbox, throwing away letters instead of giving them to whom they are addressed to, cutting the telephone lines, preventing phone communications by creating a magnetic field), because by committing the actions given in the examples, the right which is violated is not the right to respect for the privacy of communications; but the right to communicate. The 124tharticle of the Turkish Criminal Code states that; “(1) In case of unlawful prevention of communication among the persons, the offender is sentenced to imprisonment from six years to two years or imposed punitive fine. (2) Any person who unlawfully prevents communication among the public institutions is punished with imprisonment from one year to five years. (3) Punishment is imposed according to the provisions of second subsection in case of unlawful prevention of broadcasts or announcements of all kinds of press and publication organs.”
[4]See, Eisele, Jörg, Strafrecht Besonderer Teil I, Straftaten gegen die Person und die Allgemeinheit, Köln 2007, n.654 et al.
[5]The dictionary meaning of communication is the transfer of news and information between people by means of technical devices. See, Türk Dil Kurumu, www.tdkterim.gov.tr/bts (15.05.2012).
[6]Although at least the presence two people are required for a communication, the communication may also happen between more than two people. For example, a communication conducted via teleconference.
[7]Zafer, Hamide, Özel Hayatın ve Hayatın Gizli Alanının Ceza Hukukuyla Korunması (TCK.m.132–134), İstanbul 2010, p.92,93; Tezcan, Durmuş-Erdem, Mustafa Ruhan-Önok, R. Murat, Teorik ve Pratik Ceza Özel Hukuku, 7thEdition, Ankara 2010, p.499.
[8]Zafer, p.96.
[9]Koca, Mahmut, “Haberleşmenin, Konuşmanın ve Özel Hayatın Gizliliğini İhlal Suçları (TCK.m.132–134)”, in: Ceza Hukukunun Güncel Sorunları, Kolokyum (Editör: M. Tevfik Gülsoy), Erzurum 8 Ekim 2010, p.72; Tezcan-Erdem-Önok, p.499.
[10]Zafer, p.91.
[11]In the doctrine, Zaferstates that as the recording of a communication does not always mean acquiring knowledge about the content, the “recording of the communication” shall be considered as a separate crime instead of an aggravating state. We do not agree with this idea. See. Zafer, p.82.
[12]Disclosure;means to reveal, disseminate, declare or divulge a secret information. See, The Institution of the Turkish Language, Turkish Dictionary, www.tdkterim.gov.tr/bts (15.06.2018).
[13]Koca, p.72, 73; Tezcan-Erdem-Önok, p.500.
[14]Koca, p.73; Tezcan-Erdem-Önok, p.500.
[15]Koca, p.73; Tezcan-Erdem-Önok, p.500.
[16]Koca, p. 74.
[17]The monitoring of the communication through telecommunications during prosecution and criminal proceedings for the prevention of crimes, is regulated as a protection measure between articles 135–138 of the Turkish Criminal Procedure Code. Monitoring of communications for prevention and intelligence purposes is also regulated and applied in; the Code on Police Duties and Powers (Law no. 2559) (additional article 7), the Code on Gendarmerie Organization, Duties and Powers (Law no. 2803) (additional article 5) and the Code of the State Intelligence Services and the National Intelligence Organization (Law no. 2937) (art. 6).
