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EPIC --- Privacy and Human Rights Report 2006

Republic of Turkey

Constitutional Privacy Framework

Article 20 of the Turkish Constitution deals with individual privacy and states, "Everyone has the right to demand respect for his private and family life. Privacy of individual and family life cannot be violated."[5210] Article 20 prohibits the search or seizure of any individual, his private papers, or his belongings unless there exists a decision duly passed by a judge in cases explicitly defined by law, and unless there exists an order of an agency authorized by law in cases where delay is deemed prejudicial. Article 22 preserves the secrecy of communication and states that, "Communication shall not be impeded nor its secrecy be violated, unless there exists a decision duly passed by a judge in cases explicitly defined by law, and unless there exists an order of an agency authorized by law in cases where delay is deemed prejudicial."[5211] In October 2001, in a move aimed at improving its chances of joining the European Union, Turkey passed the Constitutional Amendment Bill, containing 34 proposals for amendments to the Constitution.[5212] Several of the proposals strengthen the basic rights and freedoms of individuals, including increased protection for privacy of the person and the home.[5213]

Data Protection Framework

As part of Turkey’s 2005 Accession Partnership with the European Union, Turkey is required to “[a]dopt a law on protection of personal data” and “establish an independent supervisory authority.”[5214] According to the European Commission’s latest progress report in late 2006, there have been no developments in Turkey as regards the protection of personal data.[5215] The EU partially suspended accession negotiation with Turkey in December 2006.[5216]

The 2003 Draft Data Protection Act (DDPA), has not yet been adopted. The draft establishes the protection of privacy in the public and private sphere on a new legal basis. It protects the personal data handled either by persons or entities, with the aim of protecting natural persons. The law will be applicable to both automated and manual data processing. It aims to protect the right of personality and the fundamental rights of persons who are the subjects of data processing.

The draft contains the following rules: General conditions for the legal standard of data processing; rights of personal data subjects; rules for data processing under private and public law; structure and obligations of the supervisory authority; data registry; registration of the data collection; data transfer to other countries; obligation to register data transmission; and penal provisions: the legislature intends to legislate offences against privacy, which will be subject to civil, administrative and criminal sanctions.[5217]

Statutory Rules Related to Privacy

For the time being the protection of personal rights within the Turkish national legislation is regulated in the Civil Code. Pursuant to Article 24 of the Civil Code, an individual whose personal rights are violated unjustly has a right of civil action. However, there is little criminal liability for such violations of personal rights.

The 2005 Criminal Code regulates felonies against the private life and the private sphere. These felonies may be pursued ex officio, where the offences concern the storage, illegal transfer or data retention. The following felonies on data protection are established in the section 9 of the Turkish Criminal Code: Violation of the communication secrecy; wire-tapping; storage of personal data; and, illegal transfer of personal data.[5218]

A Turkish law extending the state press restrictions to the Internet was passed amid much opposition in May 2002.[5219] The law, called the Supreme Board of Radio and Television Bill No. 4676,[5220] places the Turkish Internet under the regulatory authority of the Supreme Radio and Television Board (RTUK).[5221] Turkish President Ahmet Necdet Sezer has expressed disapproval of the provisions,[5222] although the Supreme Court has already upheld some portions of the law.[5223]

The Electronic Signature Code came into force on July 23, 2004. The Act was prepared under the guidance of the EU Directive and taking into account the practice of member states such as Germany, France, Austria, and Belgium. In addition, the E-signature Regulation and Communique entered into force on January 6, 2005.[5224]

Under this law, certificate service providers are subject to the following obligations related to data protection: (a) The certification service provider may collect personal data only to the extent, necessary for the purposes of issuing a certificate. Sharing data with a third party is permissible only with the consent of the person whose personal data is being processed; (b) The certification service provider may not disclose the certificate to third parties without the consent of the certificate owner; and, (c) The certification service provider has to prevent third parties from collecting personal data without the written consent of the owner of such personal data. The certificate service provider may transfer/use personal data only with consent of the owner of such data.[5225]

Wiretapping and Surveillance Rules

Despite the existing laws and regulations, the right to privacy of private communications is not well-respected in Turkey. According to Human Rights Watch, human rights defenders are routinely placed under surveillance, often prevented from holding public events, and routinely prosecuted for various speech and assembly offenses.[5226]

Under the current Turkish Criminal Code, computer-related offenses can be prosecuted pursuant to Amendment 3756, "Crimes on Informatics."[5227] Articles 195-200 of the Turkish Criminal Code govern freedom of communication through letters, parcels, telegram and telephone. Government officials are required, subject to various exceptions, to obtain a judicial warrant before monitoring private correspondence.

In February 2004, the Telecommunications Authority enacted a new data security regulation.[5228] This regulation is in principle a summary of the European Union’s 1997 directive on data protection in electronic communications.[5229] It regulates the following topics: security of communication; duty to disclose the risks with regard to network security; privacy of communication; processing of data; call number display; lists of participants; and spamming. In the Telecommunications Authority’s 2007 workplan, the Authority states that it plans to review the regulation in order to suggest harmonization with the European Union’s 2006 Data Retention Directive.[5230]

In a letter that was leaked to the media in early 2007, the National Intelligence Agency Undersecretary complained about the difficulties the national intelligence community was facing because of existing legislation against phone tapping and eavesdropping; he requested an amendment in the law to enhance the eavesdropping power of the agency.[5231]

The Undersecretary’s letter was leaked at the same time that Parliament proposed a draft bill penalizing an expanded list of “Informatics crimes” such as pedophilia, pornography, prostitution, inciting to suicide, gambling while empowering a new “Informatics Crimes High Board” to restrict access to Web sites that included elements in contravention to the Law Against Terrorism. The High Board would have the power to provisionally or permanently shut down websites. The bill lists a number of agencies that would have the right to apply relevant “filtering” software to monitor individuals' e-mail traffic. The Cabinet passed the bill, which is now awaiting final debate in the General Assembly.[5232]

In 2006, the government adopted amendments to its Antiterror Law. The amendments have been highly criticized for placing further restrictions on the already censored media. Editors that disclose the identities of public personnel fighting terrorism may be fined, and a judge may order the closure for up to one month of a publication that "makes propaganda for terrorist organizations." During the year there was an increase in the number of cases against the press under the Antiterror Law. The Turkish Publishers Association and human rights groups reported that the law contains an overly broad definition of offenses that allows ideologically and politically motivated prosecutions.[5233]

Immediately following deadly bombings in Ankara in May 2007, the government proposed another law enforcement bill that will allow police to take fingerprints of anyone applying for a gun license, driving license, passport or Turkish citizenship. It also provides the police with a larger authority to stop, search and demand identification from individuals. The bill also enables the police to use anyone to collect information. Some lawyers say it represents the largest expansion of police authority ever.[5234]

Relevant Developments on E-Government

Currently, the Ministry of Finance is preparing the Draft Code on Electronic Invoice and Electronic Commercial Books. By the end of this year, it is expected to be in force in Turkey. Furthermore, the Undersecretary of the Prime Ministry for Foreign Trade, the Electronic Commerce Commission and the Ministry of Justice jointly established a Working Group on the problems of Electronic Commerce in the EU and in Turkey. Finally, there are also published studies[5235] and significant working groups about computer forensics.[5236]

Major Privacy Case Law

In November 2006, the European Court of Human Rights ruled that Turkey infringed the right to privacy of a human rights defender whose premises were searched and whose private professional materials were seized without the requisite authorization. Taner Kılıç, is a board member of the Izmir branch of the Association of Human Rights and Solidarity for Oppressed Peoples (MAZLUM-DER). In June 1999 the now-defunct Ankara State Security Court issued a warrant authorizing the search of the headquarters and branches of MAZLUM-DER in order to collect evidence concerning certain acts by the association, allegedly carried out against the “integrity of the country and the secular regime.” Maintaining that the situation was urgent, the public prosecutor extended the scope of the search warrant and ordered the search of the homes and offices of the association's general director and board members.[5237]

Subsequently, when communicating the search orders issued by the State Security Court and the public prosecutor to the governors, the undersecretary of the Ministry of the Interior specified that not only the homes and offices of the general director and board members should be searched but also the premises of all branch board members. During the search of Kılıç's home, the police confiscated two videotapes and photocopied various documents taken from his office. Kılıç complained about the search and the seizure of his property.[5238] According to Orhan Kemal Cengiz, lawyer for the applicant, “[t]his case shows that it is high time to think about the rights of human rights defenders,” and the decision urges Turkey to revise practices such as frequent house and office searches and property seizure used against human rights defenders.[5239]

National Identity Cards

Religious affiliation is listed on national identity cards. A few religious groups, such as the Baha'i, are unable to state their religion on their cards because it is not included among the options; they have made their concerns known to the government. In April 2006, the government adopted legislation allowing persons to leave the religion section of their identity cards blank or change the religious designation by written application. However, according to the US State Department, the Turkish government continued to restrict applicants' choice of religion.[5240]

Open Government

A Law on the Right to Information[5241] was officially published in October 2003 and went into effect on April 24, 2004.[5242] The law allows the public to request information from government agencies. It provides for the withholding of confidential private information, and the review of disputed information requests by a Board, as well as a right to sue.

Appeals of withholdings are to the Board of Review of the Access to Information. Its jurisdiction was originally limited to cases relating to national security and state economic interests but the law was amended in November 2005 to allow appeals in all cases. The Board received 1566 appeals through March 2006. It accepted 567 cases. Due to the efforts of NGO BilgiEdinmeHakki.org, the Board of Review began publishing its decisions as of April 2007.[5243] Appeals can then be made to the administrative court. There are a few pending cases mostly related to non-compliance with board decisions by public authorities but there have been no decisions.[5244]

The Law on the Right to Information was amended in 2006 to enable citizens to dispute all decisions of state agencies regarding denials of requests for information. Public organizations are making use of the new legislation. A total of 626,789 requests for information were submitted and public agencies responded positively to 86.5% of requests.[5245]

In 2006, Turkey adopted a law for the establishment of an Ombudsman that the European Union believed would help fight corruption, increase transparency and allow better control of military spending; however, President Sezer vetoed the law before its enactment in July 2006.[5246] Following Turkey’s election on July 22, 2007, the EU stated that passage of the Ombudsman’s bill should be a top priority of the new government.[5247]

International Obligations

Turkey signed the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention No. 108) in 1981 but has not yet ratified it.[5248] It has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5249] and the International Covenant on Civil and Political Rights.[5250] Turkey has been a member of the Organization for Economic Co-operation and Development since 1961. Turkey adopted the UN Convention on Fight against Corruption, which entered into force in May 2006.

[5210] Constitution of the Republic of Turkey at Art. 20, available at <http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm>.
[5211] Id.
[5212] Nick Thorpe, "Mixed Reactions to Turkey's Reforms," BBC News, October 5, 2001, available at <http://news.bbc.co.uk/hi/english/world/europe/newsid_1580000/1580238.stm>.
[5213] US Department of State, Country Reports on Human Rights Practices - 2001, March 4, 2002, available at <http://www.state.gov/g/drl/rls/hrrpt/2001>.

[5214] European Commission Council Decision of 23 January 2006 on the principles, priorities and conditions contained in the Accession Partnership with Turkey (2006/35/EC), available at <http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=32006D0035&model=guichett>.
[5215] European Commission Turkey 2006 Progress Report, November 8, 2006, available at <http://ec.europa.eu/enlargement/pdf/key_documents/2006/nov/tr_sec_1390_en.pdf>.
[5216] European Commission Questions and Answers – Turkey, available at <http://ec.europa.eu/enlargement/questions_and_answers/turkey_en.htm>.

[5217] Id.

[5218] Id.

[5219] Jonathan Evans, "Turkey Passes Strict Net Law," Wired News, May 15, 2002, available at <http://www.wired.com/news/politics/0,1283,52558,00.html?tw=wn_story_related>.
[5220] Yaman Akdeniz, Internet Governance and Freedom in Turkey 3 (2003). available at <http://www.cyber-rights.org/documents/osce_turkey_paper.pdf>.
[5221] Dorian Jones, "Turkey Tightens Controls on the Net," BBC News Online, May 28, 2002, available at <http://news.bbc.co.uk/1/hi/sci/tech/2006759.stm>.
[5222] Id.
[5223] Asian School of Cyberlaws News, "Turkey Court Upholds Internet Law," available at <http://www.asianlaws.org/cyberlaw/archives/06_02_turkey.htm>.

[5224] All legal documents are avalaible at: <http://www.tk.gov.tr>.

[5225] Id.

[5226] Human Rights Watch 2006 Report – Turkey, available at <http://www.hrw.org/wr2k7/wr2007master.pdf>.

[5227] Turkish Criminal Code, Amendment No. 3756 (June 14, 1991).

[5228] See <http://www.tk.gov.tr>.
[5229] Directive 97/66/EC, available at <http://www.dataprotection.ie/viewdoc.asp?m=l&fn=/documents/legal/6aiii.htm>.
[5230] Republic of Turkey Telecommunications Authority Workplan 2007, available at <http://www.tk.gov.tr>.

[5231] Yusuf Kanli, Informatics Crimes, January 17, 2007, Turkish Daily News, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=64142>.

[5232] Id.

[5233] US State Department Human Rights Report 2006 – Turkey, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78844.htm>.

[5234] Onur Burcak Belli,“Advocacy Groups Alarmed at Proposed Police Powers,” Turkish Daily News, May 29, 2007, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=74411>.

[5235] Leyla Keser, Adli Bilişim (Computer Forensic), Ankara 2004; Istanbul Bilgi University IT Law Center and Istanbul Police Headquarters, Booklet on Computer Forensic (Adli Bilişim), Istanbul 2004.
[5236] Istanbul Bilgi University, IT Law Center, available at <http://bthukuku.bilgi.edu.tr/>; the Izmir Institute of Technology, College of Engineering, Department of Computer Engineering organized on May 19-20, 2005 a two-day workshop on these topics.

[5237] “Rights Defender Wins Case Against Turkey,” Turkish Daily News, November 5, 2006, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=58361>.

[5238] Id.
[5239] “Human Rights Defender Wins Case,” Turkish Daily News, November 5, 2006, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=58365>.

[5240] US State Department Human Rights Report 2006, supra.

[5241] Law on the Right to Information (No. 4982), available at <http://www.bilgiedinmehakki.org/en/index.php?option=com_content&task=view&id=7&Itemid=8>.
[5242] "New FOI Law in Turkey Posted, Campaign Underway for Implementation," FreedomInfo.Org News, available at <http://www.freedominfo.org/countries/turkey.htm>.

[5243] “Turkish Right to Information Assessment Council started to publish its decisions,” March 14, 2007, available at <http://www.bilgiedinmehakki.org/en/>.
[5244] David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Records Laws, July 2006 at 124-125, available at <http://www.freedominfo.org/documents/global_survey2006.pdf>.

[5245] European Commission Turkey 2006 Progress Report, supra.

[5246] “Sezer Vetoes EU-Backed Ombudsman Law,” Turkish Daily News, July 2, 2006, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=47794>.
[5247] “Relieved EU Urges the New Government to Renew Reform,” Turkish Daily News, July 24, 2007, available at <http://www.turkishdailynews.com.tr/article.php?enewsid=79123>.

[5248] Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108), available at <http://conventions.coe.int/Treaty/en/Treaties/Html/108.htm>.
[5249] Signed November 11, 1950; ratified May 18, 1954, entered into force May 18, 1954, available at <http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>.
[5250] Signed August 15, 2000; ratified September 23, 2003, available at <http://www.ohchr.org/english/countries/ratification/4.htm>.