The decision of the Constitutional Court, dated 03.02.2022 and decision No. 2019/20473, regarding the violation of the right to request the protection of personal data as a result of the woman’s complaint regarding illegally accessed of the hospital records before marriage by her husband, was published in the Official Gazette dated 18.03.2022.
There is a divorce lawsuit between the applicant and their spouse. Due to the fact that the applicant’s husband is a doctor, using his professional privileges, he accessed the applicant’s before marriage hospital records and used these records as evidence in the divorce lawsuit. Thereupon, the applicant claimed that spouse had illegally accessed the health reports using their doctor’s identity and used them as evidence. Accordingliy, the Applicant filed a complaint alleging that their spouse that committed the misfeasance in office, violation of privacy and illegally accessed of personal data and sharing of data. However, the relevant Public Prosecutor’s Office decided not to prosecute since the spouses are first degree relatives and have the right to access each other’s health information. The applicant objected to this decision and her objection was rejected. Thereupon, the applicant applied to the Constitutional Court.
As a result of the examination of the application the Constitutional Court stated that, as per Article 20 of the Constitution of the Republic of Turkey the state is obliged to prevent all kinds of interventions and restrictions against personal data within the scope of protection of personal data. In accordance with the positive obligations of the state;
- It should prevent the unlawful collection and processing of personal data.
- It should prevent the unlawful intervetion and arbitrary interference of third parties with the private lives, fundamental rights and freedoms of individuals.
- It should carry out an effective investigation and prosecution against those who unlawfully process and share personal data.
In its relevant decision, the Constitutional Court emphasized that express consent must be obtained from the data subject, including their spouse, from the first degree relatives, in order to protect personal data. The fact that the applicant did not explain to their spouse regarding the before marriage hospital records shows that did not have her explicit consent.
The Constitutional Court emphasized that the decision of the Public Prosecutor Office’s that the act could not be regarded as a violation of privacy as the spouses were first-degree relatives and had the right to access each other’s health information, clearly lacked any legal basis. The Constitutional Court stated that such an assessment would leave the persons concerned unprotected in terms of their right to demand the protection of personal data. As part of its evaluations, the Constitutional Court decided that the public prosecutor’s office did not take the necessary measures regarding fundamental rights and freedoms, contrary to the positive obligations of the state. The Constitutional Court decided that the Public Prosecutor’s Office violated the right to demand the protection of personal data within the scope of respect for private life, regulated in Article 20 of the Constitution, without conducting a comprehensive examination.
Conclusion: The Constitutional Court;
- The express consent of the person concerned should be obtained in order to access the personal data of their first-degree relatives, including their spouse,
- It has decided that the right to demand the protection of personal data, which is guaranteed by Article 20 of the Constitution, has been violated and that this right can be asserted against anyone.