In General

            Provisions about processing of personal data are set out in the Third Section of the First Book of the Turkish Criminal Procedure Code (TCPC) numbered 5271,titled as “Testimony, Expert Examination and Discovery” and the Third Section titled “Observation, Examination, Discovery and Autopsy” and in the articles of 75, 76, 78, 80, 81, 82, 134 ve 135. In article 80 of TCPC titled as  “The secrecy of the outcomes of genetic analysis”  it is regulated that “– (1) The outcome of the analysis on samples obtained according to Arts. 75, 76 and 78 are considered as personal data and shall not be used for another purpose; the individuals, who have access to the files, shall not disclose the information to unauthorized persons . ( 2 ) As soon as the time limit for opposing the decision on no ground for prosecution is exhausted, the opposition has been overturned, the court gives a final judgment on acquittal or a judgment is rendered on not punishing the accused and those judgments are made final, these information sh all be destroyed immediately in the presence of the public prosecutor, and this fact shall be documented and its document shall be kept in the file .”  Article 75, 76 and 78 regulate that in what cases the physical bodily can be examinated of the suspect or the accused, and taking samples, the outcome of the analysis on samples obtained according to Arts. 75, 76 and 78 are considered as personal data and shall not be used for another purpose; the individuals, who have access to the files, shall not disclose the information to unauthorized persons .

            In article 75 titled “Physical bodily examination of the suspect or the accused, and taking samples” it is regulated that “In order to obtain evidence of a committed crime, the judge or the trial court by its own motion, or upon the motion of the public prosecutor or the victim, and in cases where there is peril in delay , the public prosecutor, may issue an order to conduct an internal physical bodily examination on the suspect or the accused, or to take sample from his body, such as blood or a like biological samples, as well as hair, saliva , nail. düzenlenmiştir.  The internal physical bodily examination or taking blood or similar biological samples from the body shall only be undertaken by a medical doctor or by another member of medical profession. There shall be no internal physical bodily examination undertaken related to crimes that carry imprisonment less than 2 years at the upper level; in these instances, it is forbidden to take blood or similar biological samples from the body, as well as hair, saliva, nail.”

            In article 76 titled as “The physical bodily examination on, and taking samples from third parties”   it is regulated that  “to conduct external or internal physical bodily examination on the victim or taking blood or similar biological samples from the body of the victim, as well as hair, saliva , nail in order to obtain evidence”. Where there is a need to determine the parentage of a child, a decision according to the rules in subparagraph one is required , in order to conduct this research.

            In article 78 titled as Molecular-genetic tests as explained above; Molecular-genetic tests shall be conducted on the material obtained through interactions described in Articles 75 and 76, only if it is necessary to determine the family connections or to determine if those body samples belong to the suspect or to the accused or to the victim,  düzenlenmiştir.  Tests that are outside of the scope of these aims are forbidden. Molecular genetic-tests according to Article 78 shall only be conducted upon a judge’s order. However, in other cases, in cases where the judge’s decision or delay is inconvenient, a decision can be made by the Public Prosecutor, and then the decision is submitted for approval by the court or judge within 24 hours. In addition, in cases where it is necessary to take a sample from the victim, the consent of the victim is also sufficient.

           In aricle 81 titled as Establishing the identity in a physical way it is regulated that  “( 1 ) If the committed crime requires a maximum prison term of two years or a heavier punishment, upon the order of the public prosecutor , a picture shall be taken, measurement of the body shall be made, fingerprints or palmprints shall be taken, special marks on the body, that would enable the recognition of the suspect or the accused shall be registered ; and a voice sample and a video film shall be produced as well, and inserted into the file where the interactions related to the investigation and prosecution are kept. (2) In cases where the time limit for opposing the decision on no ground for prosecution is exhausted, the opposition has been overturned , the court gives a final judgment on acquittal or a judgment is rendered on not punishing the accused and those judgments are made final , related records shall be destroyed in the presence of the public prosecutor and this fact shall be documented.”.

            In article 82 it is foreseen that “The procedures regarding the interactions foreseen in Articles 75 to 81 shall be fixed in an internal regulation.” so the Regulation on Physical Examination, Genetic Examinations and Physical Identification in Criminal Procedure on 01.06.2005 is issued by the Minister of Justice.  In the regulation, there are detailed regulations on internal body examination, external body examination, body sampling, molecular genetic examinations, physical identification. In the regulation, in case of conviction about the decision of the defendant ,the defendant’s Photograph, Image, iris, body measurements, teeth marks, finger and palm prints, have taken place in the body, and description information to facilitate the diagnosis, ear, lip identification of the body with traces of organs such as sound and images that you could use the left hand on the inner surface of the curved finger and palm prints of the skin with special shapes, photo, and description of information by law enforcement agencies, the outer tracks is arranged to be engaged in the process of archived by your health care provider. Although there is no record of the storage of the personal data of the accused against whom a conviction decision was made in the Turkish Criminal Procedure Code, we assess that the fact that this issue is regulated in the Regulation may pose a problem in terms of the general principle that personal data regulated in Article 20 of the Constitution can only be processed in the cases provided for by law or with the explicit consent of the person.

                In article 134 titled as “Search of computers, computer programs and transcripts, copying and provisional seizure”; on the search of computers and computer programs and records used by the suspect, the copying, analyzing, and textualization of those records, if it is not possible to obtain the evidence by other means benzer şekilde ,  article 135 titled as “Location, listening and recording of correspondence”; to locate, listen to or record the correspondence through telecommunication or to evaluate the information about the signals of the suspect or the accused, if during an investigation or prosecution conducted in relation to a crime there are strong grounds of suspicion indicating that the crime has been committed and there is no other possibility to obtain evidence. In the scope of article 140 titled as “Surveillance with technical means” it is observed that while the audio or video recording of the suspect or accused’s activities in public places and workplace are monitored by technical means, their personal data will be processed and the personal data of the victims or third parties who are in contact with the accused, other than the accused and the suspect, will also be processed. In articles 134, 135 and 140 it is regulated that “Search of computers, computer programs and transcripts, copying and provisional seizure”, “Location, listening and recording of correspondence”  ve “Surveillance with technical means” shall be decided by the judge, and in cases where there is peril in delay, by the public prosecutor . The decisions rendered by the public prosecutor shall be submitted for the approval of the judge within 24 hours. Within the scope of the relevant articles, a legal regulation has been made for the processing of personal data in order to fight crime and criminals, and this authority, which has not been satisfied with the legal regulation, has been given to the judge.  However, it will be possible to talk about the processing of personal data of individuals who have contact with the accused and suspects other than the criminal activity in most cases. The personal data of individuals who are not related to the criminal act or the personal data of other individuals who are not related to the crime who communicate with the accused / suspect will also be processed on the computer or computer logs belonging to the accused. In order for purposeful processing to take place within the scope of the principles of processing personal data, this issue constitutes sensitivity, and we assess that effective measures should be taken and arrangements should be made to protect the personal data of persons other than the accused and the suspect.

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