An Overview of the Decision of the 5th Chamber of the Council State 2013/5342 E.2013/9525K.

AN OVERVIEW OF THE DECISION OF THE 5TH CHAMBER OF THE COUNCIL STATE 2013/5342 E.2013/9525K. [1]

1.    SUMMARY OF THE CASE

Plaintiff, Sağlık ve Sosyal Hizmet Emekçileri Sendikası

Defendant, Konya Valiliği

The case emerged from taking fingerprints of workers to ensure their attendance during working hours. Plaintiff objected to the usage of fingerprints instead of the card-reading system to detect whether they attanted work during working hours. The plaintiff emphasized that descision of the First Instance Court were contrary to 13th article of the Constutituon entitled ‘Restriction of fundamental rights and freedoms’, 20th article entitled ‘Privacy of private life’, 8th article of the European Convention on Human Rights entitled ‘ Right to respect for private and family life’, 17th article of International Covenant on Civil and Political Rights and appealed the case. The defendant Governor’s Office, on the other hand, affirmed that the 99th article of the Civil Servants Law and the relevant articles which regulates the working hours of civil servants. They claimed that the articles didn’t make detailed arrangements about the systems that arranged working hours for civil servants, we can understand that these articles were framework laws and their implementation will be determined according to conditions of the period. As a result of that, this kind of practices are not contrary to the law because we are using technological systems to execute public services effectively.

2.    VERDICT OF AUTHORITIES

The Court of First Instance justified the defences of the defendant and rejected the pleas of the plaintiff. Thereupon the plaintiff requested of appeal, Council of State made a contrary decision and accepted the plaintiff’s request for appeal.

3.    LEGAL ISSUE TO BE SOLVED

The main question in this case is whether it is possible taking fingerprints of people, which is a personal data for individuals, to detect their working status even for public interest. The disagreement arose in determining the priority and persob whose favor the decision will be made in case of any conflict between the rights of individuals and the public interest.

4.    OUR CONCLUSION

Since the main problem in this case is the usage of employees’ fingerprints, we will start our observation by detailing what the concept of personal data is. The legislator regulated personal data as “ any information relating to an identified or identifiable natural person” [2] . Based upon this definition, we can comprehend the elements of personal data, if we want to talk about this concept the elements of personal data must be formed.

1. Real person: The legislator accepted that only a real person can have personal data. As a matter of that associations, foundations etc. can’t have any personal data because as they are made by legislator, they aren’t real people.

2. To being specific or being identifiable: In any case these people must be identified, so we must be clear about who they are or they must be identifiable. We can reach them after a certain research. There’s a few examples about being identifiable; a)In a criminal case which attracted the attention of public when it took a public newspaper, eventhough they didn’t reveal any personal informations people could still found these informations with a certain research, there was a violation against revealing defendant and plaintiff’s personal data[3].  b) There are still people who are taking place in social platforms as an anonymous person, but we can detect and have informations about these people by finding the IP address they use[4].

3. Any information: By using this element, the limits of personal data has been considerably expanded by the legislator. All kinds of ideas, informations, drawings, videos, photograps etc. belonging to a person, both in real life and social media, are counted in this element.

4. Casual Connection[5]: Due to this element, that data must be related to that person. It is essential that there must be a connection between them. An opinion also accepted by people in law that this casual link consist of three parts and in order to talk about this connection at least one of these three order must exist[6].

These are;

1. The content element: the reason why something is considered as personal data is because they contain information about that person.

2. The purpose element; something considered as a personal data because they are obtained for certain purposes. There is a few examples about this element to make it clear. Receiving people’s health informations, home adresses, telephone numbers etc before hiring them due to situations may occur in working environment.

3. The result element: Something can be considered as a personal data because as a result of processing their data they may face different treatment.

We can define fingerprins as a unique pattern that every people has on their fingers, even each finger has a different pattern from each other. We can distinguish people by means of their fingerprints. This feature helps especially in criminal cases. There is no doubt fingerprints are included in the concept of personal data.

One of the other concepts defined by legislator in the same law is the concept of processing personal data[7]. “ Processing of personal data means any operation which is performed on personal data, wholly or patially by automated means or non-automated means which provided that form part of a data filing system, such as collection, recording, storage, protection, alteration, adaptation, disclosure, transfer, retrival, making available for collection, categorization, preventing the use thereof "[8].  The legislator regulated the concept of consent in this law as ‘explicit consent’[9]. Explicit consent is a type of consent that regarding a specific subject, based on information and indicated with free will, this definiton also gives us the elements of this concept. We can talk about ‘ explicit consent’ if these elements come together :

1. People’s consent must be related to a specific subject matter; people can’t be asked to make a general consent. In the situations, if there is a matter that includes more than one subject, people must be informed separately about every matter and their consent must be request.

2. People must be sufficiently informed about the issues and procedures which they will show consent and everything must be explained in a simple language and no absent point must be late.

3. The statement of concent must be based on people’s free will. People musn’t be under any influence, threat etc. While giving consent. As a consequence power disparity between individuals may undercut the effect of consent. The consent statements between workers and employers is ab example of this situation. It is also clear that the types of defect in consent which regulated by the legislator in Turkish Obligation Code ( article 30, 36, 37)  are also affects the consent in area.

In addition, we should always remember that if we want a legally solid consent, the person must have the qualification to consent. That person must be ablo to analyze the situation and consequences which they give consent.

The legislator regulated the concept of giving consent as an recovable action and stated it in article 7/4 of the relevant by-law[10]. As a consequence of this it is stated that everyone who gave their consent can always revoke their consent and the action of revoking consent can’be made difficult and their opportunity to do this action must be in an easy way[11]. When a person revoked their consent according to law their previous transactions remain valid, so the action of revoking affects future transactions[12]. This article is particularly important in cases which there is a hierarchy between the individuals/actors of law[13].

In Turkish Contutituon article 12 it is stated that everyone has fundamental rights and freedoms that are personal which are invioable and innalienable and indispensable[14].rights and freedoms guaranteed by the Constutituon and they are nıt related to people’s race, religion, status, gender, language etc. Personal data of individuals are also contemplate within this scope. Article 13th of this Constitute regulates an exception status in which when and how people’s freedoms and rights can be limitated and in 15th article there is another exception about suspension of these fundemental rights and freedoms[15].  Article 13th is related to our case so we will examine this. People’s fundamental rights and freedoms can be restricted under these circumstances:

1. The essense of rights and freedoms musn’t be violated. The essense of freedoms and rights can be defined as the most basic aspect of it that is not restricted to such a mass as to distribute its existence meaningless. These essences are the smallest core of the rights and the freedoms that gives us their definition. The limitation or absence of them wipes out the existance of that rights and freedoms.

2. Restrictions must have an accordance with the reasons mentioned in the relevant articles of the Constitution. When the legislator regulated a lot of freedoms and rights in the Constitution, they also regulated some exceptional reasons for limitation of these rights and freedoms and it is stated that these limitations must be made only based on these reasons. If there isn’t any reason to limitate any freedom or right then any limitation against them will be contrary to the Constitution. For example article 34 of the Contitution regulates the right to hold meetings and demonsration marches and it is stated that “this right can be restricted only grounds of national security, public order, prevention pf comission of crime, protection of public health and public morals or the rights and freedoms of others”. Article 23 orders the freedom of residence and movement and this freedom can be restricted only for “the purpose of investigation and prosecution of an offence and prevention of crimes”. Even thought the concepts of public health , public morals etc makes this situation a bit unclear, the legislator thought it will be appropiate to regulate them under a general heading.

3. Freedoms and rights only restricted by law.  According to this element any restrictions which depens on by-law, code etc will be against the Constitution and will be void.

In article 13 of the Constitution the legislator also limitated the limitation of freedoms and rights. According to this article these limitations can’t  be contrary to the core and the spirit of the Contitution, the democratic social order, the requirements of the secular republic and the principle of proportionality. The concept of proportionality iş the main issue to be investigate here[16]. This principle is an overall principle that consist of three principles called principle of necessity, concenience and proportionality[17]. Necessity means that there is a needing situation to this restriciton;  Convenience means that when we restrict a freedom or right we should use the least restrictive option; Proportionality means that there must be a proportion between the restriction and and cherished result and preventing the extremism[18].

The Council of State addressed many national and international articles while giving a verdict. In this artickle we only investigated articles of Personal Data Protection Law and the Turkish Constitution. We are on the same page with the majority vote of the Council of State. Fingerprints are our personal data which directly connects to our private life. In this case, when employers took the employee’s fingerprints they violated their private law which is contrary to the article of 12 , 13 of the Constitution and there weren’t any law to regulate this violation. The Law of Data Protection in article the legislator sought the people’s explicit consent for proceeding their data. In this situaton we can see there is a hierarchy and there isn’t power balancy between the actors of law. Employee’s may have worries about being fired that’s why can’t say their consent weren’t affected. We should also note that there isn’t the direct reasoning between cotrolling employee’s working status and taking their fingerprints, so this element is also absent. Overall we are  agree with the Council of State and their resons while giving the verdict.

Sources

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