Business Law

THE CONSTITUTIONAL COURT HAS EVALUATED THE TRACKING SYSTEM WITH FINGERPRINTS AS A VIOLATION OF RIGHTS!

In the individual application filed by Ramazan Şahin (“the Applicant”), the Constitutional Court (“ The Court”) has decided that the right to demand personal data protection within the framework of respect for private life has been violated. The aforementioned application is related to the claim that the right to demand personal data protection within the framework of respect for private life has been violated due to tracking of applicant’s working hours via fingerprint registration system. In this article, we will be reviewing certain important aspects of the Constitutional Court’s decision.

CASE SUMMARY

  • The Applicant is working as a public employee at Söke Mayor’s Office (“Institution”). The fingerprint of the Applicant has been recorded by the Institution as fingerprint tracking has started at the workplace.
  • The applicant requested the removal of the aforementioned application, but such request has been refused by the Institution. The Applicant has filed an annulment lawsuit before the Firs Instance Administrative Court upon the refusal of  this request. The First Instance Administrative Court has decided to accept the case and annul the administrative transaction.
  • The Institution has filed an appeal against the First Instance Cour’s decision mentioned above and The District Administrative Court ( which is the court of appeal for the case ) has decided to  finally reject the case,  by accepting the defendat party’s request for appeal.

EVALUATION OF THE CONSTITUTIONAL COURT DECISION

The Constitutional Court has evaluated the Applicant’s fingerprint in the category of biometric data. The Court has come to the conclusion that such processing of personal data constitutes an interference with the right to demand personal data protection within the framework of respect for private life. As to whether the aforementioned interference  constitutes a violation, The Court stated that it is necessary to examine first whether there is a legal basis for the interference.

It has been stated that biometric data within the scope of personal data of special nature can be processed in the event that a person gives  expres consent or such data can be processed without seeking consent under the conditions in the second sentence of paragraph (3) of Article 6 of Law Numbered 6698, or in case such processing is expressly provided in another law. In other words, in the event that law regulates principles and procedures of the processing of the employee’s personal data of special nature, the provisions of the relevant law can be freely applied even in case there is no consent from the personla data owner.

In order to implement a personnel tracking system with the method of recording biometric data, the explicit consent of persons owning said data must be present, in cases not regulated by the laws.

When the relevant legislation is examined, it has been seen that there is no clear regulation regarding the monitoring of employees’ attendance status and processing of personal data of special nature for this purpose in the Public Servant’s Law Numbered 657. In line with the Municipal Law Numbered 5393, the mayor has the authority to manage the municipal organization. However, it has been indicated that there is no provision regarding the processing of personal data of special nature within the framework of such authorization either.

Within this scope, pursuant to the evaluation of the Constitutional Court, since the applicant does not give consent to the processing of personal data of special nature, the intervention in this case does not satisfy the legality requirement.

The Constitutional Court has decided that the right to demand personal data protection within the framework of respect for private life has been violated in the case, on the above mentioned grounds.

CONCLUSION

The Constitutional Court gave reference to  provisions such as Article 20 of the Constitution titled “Rıght of Privacy” and Article 6 of the Law Numbered 6698 on personal data of special nature and the decisions of the Personal Data Protection Authority and the decision of the European Court of Human Rights in its evaulatıon regarding the application. The aforementioned decision is of great importance regarding the right to demand personal data protection.

Feyza Gülseren

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