Violation Of The Right To Respect For Private Life And Freedom Of Communication Due To The Recording Of Prisoners’ Letters To The National Judicial Network Information System
Events
The applicant is under arrest in a penal institution for being a member of an armed terrorist organisation.
With the Circular of the General Directorate of Prisons and Detention Houses dated 10/10/2016 (Circular), it was communicated to the execution institutions across the country through the chief public prosecutor’s offices that all letters, faxes and petitions of convicts and detainees in the execution institution, except for letters and faxes in sealed envelopes to official authorities or to their lawyer for their defence, should be scanned and recorded in the National Judicial Network Information System (UYAP). The execution institutions also started to implement the practices in accordance with the content of the Circular. The letters sent and received by the applicant were also recorded in UYAP within the scope of the said Circular.
Applicant applied to the execution judge with the request to terminate this practice and to delete the records. The execution judge emphasised that Article 68 paragraph (2) of the Law on the Execution of Criminal and Security Measures No. 5275 stipulates that the letters, faxes and telegrams sent by the convict and received by the convict shall be inspected by the letter reading commission, or in the absence of a commission, by the highest superior of the institution, and stated that this practice is not contrary to the Constitution. The applicant’s objection to the aforementioned decision was also rejected by the heavy penal court.
Allegations
The applicant claimed that his right to respect for private life and freedom of communication were violated due to the fact that all the letters sent to him in the penal institution where he was detained and which he wanted to send were recorded in UYAP.
The Court’s Assessment
Practice of recording prisoners’ letters in UYAP is based on Article 38/A of the Code of Criminal Procedure No. 5271, Article 68 of the Law No. 5275, Articles 122 and 123 of the Regulation on the Administration of Penal Execution Institutions and the Execution of Criminal and Security Measures (Regulation) and the Circular.
First of all, it has been seen that the restriction of the correspondence of convicts and detainees in penal execution institutions with the inspection is regulated in Article 68 of the Law No. 5275, and the Regulation based on the said regulation includes the details of the procedures and results of the inspection. Considering the aforementioned regulations, it is understood that the penal execution institution is given the authority to inspect the letters, in this context, the letters that are not deemed objectionable should be delivered or sent to the addressee, and those deemed objectionable should be kept in the execution institution.
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On the other hand, Article 38/A of the Law No. 5271 stipulates that all kinds of data, information, documents and decisions regarding criminal proceedings can be processed, recorded and stored through UYAP. When both laws and relevant legislation are evaluated together, it can be said that there is a legal regulation that allows the correspondence of prisoners to be recorded in UYAP as a rule within the scope of the supervision authority granted to the execution institution. However, the formal existence of laws on the restriction of fundamental rights and freedoms is not sufficient. The criterion of legality also requires a material content and at this point, the nature of the law gains importance.
In this case, considering that the correspondence of the prisoners may contain information about private life that they want to keep private and information that will remain within the scope of personal data, it should be emphasised that the laws on the restriction of the fundamental rights and freedoms of the prisoner should be of a nature to determine the basic principles and principles on the subject.
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İn this context, the law or the legislation based on the relevant law is expected to determine the scope of systematic recording of correspondence and the principles regarding the protection of private information and personal data in the letter and its content. In addition, it should include clear and detailed rules on the duration of the retention of prisoners’ correspondence, third party access to this correspondence and the use, destruction and confidentiality of the data contained in it, which would ensure that the addressees have sufficient guarantees against overstepping authority and arbitrariness.
It has been assessed that the regulation in the concrete case has resulted in a departure from the procedure determined by the legislation according to whether the letter is objectionable or not by enabling the prisoner’s correspondence, which is not objectionable, contains personal information and is not related to judicial processes, to be preserved by saving it in UYAP.
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However, it should be underlined that with the practice subject to the application, all correspondence is systematically recorded in UYAP, regardless of whether it is objectionable or not, without foreseeing any difference according to the nature of the offence subject to conviction or the status of the detainee and the convict in the context of criminal law. In addition, it is understood that there is no clear regulation on how long the prisoner’s correspondence will be kept in the system, under what conditions they will be made accessible and used by third parties, with which authorities they can be shared by the execution institution, how personal data and privacy will be protected, and there is an uncertainty in practice in terms of the aforementioned issues. In the context of these explanations, it has been concluded that the intervention has no legal basis.
For the reasons explained above, the Constitutional Court decided that the right to respect for private life and freedom of communication were violated.
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