Constitutionality Review

Contested Provision

The contested provision provides that any data obtained through genetic analysis for the purpose of gathering evidence in relation to an offence shall be destroyed immediately upon the expiry of the time-limit for challenging a decision of non-prosecution, upon dismissal of such challenge, or upon an acquittal or a decision not to impose a penalty, once such decisions have become final.

Ground for the Request for Annulment

It was maintained in brief that the contested provision is unconstitutional on the grounds that genetic analysis results are special category of personal data, and that the provision does not provide sufficient safeguards for the protection of such data. It was further argued that the provision provides for the immediate destruction of genetic analysis results only upon the issuance and finalisation of certain decisions, and that, where a decision, other than the prescribed ones, is delivered or such decisions have not yet been issued, the provision may be interpreted as allowing the retention of such results and thereby the creation of a DNA database.

The Court’s Assessment

The contested provision imposes a restriction on the right to the protection of personal data by permitting, under certain circumstances, the retention of genetic analysis results obtained in the course of a criminal investigation or prosecution, which constitute personal data.

Pursuant to Articles 13 and 20 of the Constitution, any restriction on this right must be prescribed by law and must be formulated with sufficient clarity, accessibility, and foreseeability so as to prevent arbitrariness, and must also be compatible with the requirements of a democratic society and the principle of proportionality.

It has been observed that Law no. 6698 on the Protection of Personal Data excludes from its scope the processing of personal data by judicial authorities or enforcement bodies in the context of investigation, prosecution, trial, or execution proceedings. Accordingly, the safeguards provided for in the Law will not apply to the processing of personal data obtained by judicial authorities or enforcement bodies in the course of such proceedings. Therefore, it must be assessed whether adequate constitutional safeguards are ensured in respect of the personal data obtained under the contested provision.

In this regard, the data subject, the individual who is the subject of personal data, must be informed that his or her personal data are processed, by being provided with information on the legal basis and purposes of the processing, the scope of the data processed, the period for which the data will be retained, his or her rights in this regard, the consequences of the processing, as well as the potential recipients of the data, thereby ensuring the transparency of the process. Accordingly, it is necessary to ensure that personal data are kept accurate, that the data subject is granted access to his or her data, that appropriate measures are taken to ensure the prompt rectification or erasure of unlawfully retained data, that individuals concerned are afforded the right to request rectification or erasure, and that the confidentiality of personal data is ensured in order to prevent unauthorised or unlawful processing.

Furthermore, appropriate technical and organisational measures must be in place to prevent the loss, destruction, or damage of personal data. Such data must not be retained for any period longer than necessary for the purpose of the restriction, must be processed in accordance with the intended purpose of such restriction, and the individuals concerned must be afforded an effective judicial remedy against any restriction exceeding that purpose.

Moreover, in cases where personal data such as genetic information are at stake, the right to the protection of personal data should, as a rule, not be subject to any restrictions. However, in exceptional circumstances where such restrictions are necessary, stricter safeguards must be applied, taking into consideration the severity of their impact on individuals and the risk of leading to discriminatory practices. In this regard, considering that genetic data obtained during a criminal investigation or prosecution constitute particularly sensitive personal data, the safeguards affording protection to such data must be applied in a strict manner.

It is evident that the elucidation of criminal acts and the identification of offenders serve the purposes of preventing crime and maintaining public order. However, the categorical retention of genetic data for an indefinite period, in the absence of specific criteria such as the nature or gravity of the offence or the nature of the decision issued at the end of the investigation or prosecution, may be incompatible with the constitutional safeguards for the protection of special category of personal data.

Therefore, it is necessary that the retention of such genetic data in line with their intended purpose, as well as the question of whether they may be used in subsequent investigations or prosecutions and, if so, the conditions governing such use, be explicitly regulated by law. Besides, it is clear that necessary safeguards must be afforded so as to ensure the destruction of such data upon the expiry of prescribed periods, taking into account various criteria including the status of the data subject in the proceedings, the nature and gravity of the offence under investigation or prosecution, the nature of the decision rendered at the end of proceedings, as well as the age of the offender.

The contested provision provides that data obtained through genetic analysis shall be destroyed upon the finalisation of certain types of decisions. However, there is no statutory provision regarding the period for which, and the manner in which, genetic data are to be retained pending the issuance and finalisation of those decisions, nor in respect of cases where other forms of decisions, such as conviction, dismissal, or discontinuance of proceedings, are rendered, nor as to whether such data are to be destroyed or whether the individuals concerned may request their erasure. It has therefore been concluded that the contested provision restricting the right to the protection of personal data does not satisfy the requirement of legality, in the absence of adequate safeguards and fundamental principles governing the protection of data obtained through molecular genetic analysis.

Consequently, the contested provision has been found unconstitutional and therefore annulled.