20/11/2019

Individual Application 102/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Communication due to the Lack of an Effective Investigation into the Alleged Unlawful Interception of Communications

On 10 October 2019, the Second Section of the Constitutional Court found a violation of the procedural aspect of the freedom of communication safeguarded by Article 22 of the Constitution in the individual application lodged by Ulvi Bacıoğlu (no. 2015/3175).

The Facts

   A national newspaper published a piece of news according to which several unrelated persons had been included in investigation files in certain provinces and subject to court orders for the tapping of their communication on several grounds such as “terrorist activities”, “organized crime syndicates” or “drug trafficking”.

     The applicant, becoming aware through the said news that his telephone lines were being tapped, filed a criminal complaint with the incumbent chief public prosecutor’s office for the identification and punishment of those responsible. Thereafter, an investigation was initiated for the infringement of the privacy rights within the meaning of private life.

     The inquiries conducted by the security directorate revealed that neither the telephone numbers specified by the applicant or nor the applicant himself had been subject to any telecommunication surveillance.

     In the light of these information and documents, the chief public prosecutor’s office rendered a decision of non-prosecution. The applicant’s challenge against this decision was dismissed, with no right of appeal, by the magistrate judge. 

    The Applicant’s Allegations

    The applicant maintained that his freedom of communication had been violated due to the lack of an effective and meticulous investigation into his complaint of unlawful interception of his communications.    

    The Court’s Assessment

  The freedom of communication enshrined in Article 22 of the Constitution provides protection not only for the communication itself but also for its content. 

     In the present case, the applicant filed a criminal complaint for an inquiry into the alleged unlawful tapping of his telephone numbers as well as for the identification and punishment of those responsible. Regard being had to the particular circumstances of the case, it must be ascertained whether the applicant’s telephones had indeed been tapped –as asserted in the said piece of news– and, if tapped, whether the relevant process had been conducted in compliance with the legislation.

     It has been accordingly considered that the public authorities must take necessary steps to ascertain by whom, under which power and for what purpose such tapping, if any, was conducted, thereby clarifying the impugned incident in all aspects. Given the way in which the impugned incident took place and its gravity as well, the Court has also considered that the obligation incumbent on the State to establish an effective judicial system necessitates initiation of a criminal investigation.

     The Court, in its assessments within the scope of individual application mechanism, will then focus on the questions as to whether a criminal investigation affording relevant procedural safeguards was conducted; whether the investigation was conducted independently, meticulously, promptly and effectively; and whether the outcomes of the investigation were justified with relevant and sufficient grounds so as to secure the safeguards inherent in fundamental rights and freedoms.

     The chief public prosecutor’s office initiated an investigation immediately upon the applicant’s complaint, and the applicant’s involvement in the investigation process was ensured so as to enable him to protect his rightful interests. By its letter, the chief public prosecutor’s office asked the security directorate to obtain evidence on the impugned incident, to hear the witnesses and conduct the necessary inquiries.

     The security directorate, conducting the necessary inquiries in this respect, informed the chief public prosecutor’s office of the absence of any telecommunication surveillance conducted in respect of the applicant. In its final letter addressed to the chief public prosecutor’s office, the security directorate noted that all processes concerning the interception of communications were conducted by the (closed) Telecommunication Authority (“Authority”) and therefore, it would be more accurate to ask this Authority to provide such kind of information on the interception of communications.

     In spite of the said letter submitted by the security directorate, which explicitly indicated that any requests demanding information and documents within the scope of the investigation be submitted to the Authority, the chief public prosecutor’s office rendered a decision of non-prosecution without carrying out any further inquiries and examinations.

     Therefore, the impugned investigation cannot be considered meticulous and effective due to the ignorance, by the chief public prosecutor’s office, of the information submitted by the security directorate as well as the former’s failure to obtain information from the Authority as to whether the applicant’s telephone had been wiretapped. That is because the information to be provided by the Authority would have undoubtedly played a key role in the clarification of the incident under investigation.

     Accordingly, it has been observed that no effective and meticulous investigation, which was capable of affording safeguards for the protection of the constitutional rights, was conducted into applicant’s case due to the investigation authority’s failure to seek to obtain information and documents having a key role in the investigation, and thereby to widen the scope of the investigation. The Court has therefore considered that the requirements inherent in the public authorities’ positive obligation to conduct an effective and meticulous investigation were not fulfilled in the present case.

    Consequently, the Court has found a violation of the procedural aspect of the freedom of communication safeguarded by Article 22 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.