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Turkey: Constitutional Court Rulings on “Reasonable Suspicion” in Criminal Procedure Code and on 2014 Changes to Internet Law

(Dec. 30, 2015) The Constitutional Court of Turkey issued two key decisions in December 2015, on amending provisions of a “package” law adopted in December 2014 and on amendments to Turkey’s Internet Law that had been introduced in February 2014.  (Top Court Rejects Appeal Against ‘Reasonable Suspicion’ Clause in Security Law, TODAY’S ZAMAN (Dec. 23, 2015); Burçak Ünsal, The Constitutional Court’s Decision on Internet Law, HÜRRIYET DAILY NEWS (Dec. 14, 2015).)

Decision on “Reasonable Suspicion” Wording and Certain Restraints on Access of Counsel to Files 

On December 23, the Court rejected an appeal against the 2014 Law on Amending the Law on Judges and Prosecutors and Some [Other] Law and Statutory Decrees. The appeal, instituted by the opposition Republican People’s Party (CHP), had sought to annul two controversial provisions of this package Law.  (Top Court Rejects Appeal Against ‘Reasonable Suspicion’ Clause in Security Law, supra; Law on Amending the Judges and Prosecutors Law and Some Other Laws and Decrees with Statutory Effect (Package Law), Law No. 6572 (Dec. 2, 2014) (in Turkish).) Article 40 of the Law amended article 116 of the Criminal Procedure Code to allow “individuals and their residences to be searched, property to be seized and surveillance of personal correspondence based on reasonable suspicion alone.”  (Top Court Rejects Appeal Against ‘Reasonable Suspicion’ Clause in Security Law, supra; Package Law, art. 40; Ceza Muhakemesi Kanunu [Criminal Procedure Code], Law No. 5271 (Dec. 4, 2004, as last amended Apr. 15, 2015), art. 116, MEVZUAT.) The wording of article 116 has seesawed over the last decade. In the 2004 Code, it was “reasonable suspicion,” but a February 2014 amendment changed it to “strongly based on concrete evidence.” The December 2014 Package Law changed it back to “reasonable suspicion.”

The other contested provision of the Law, article 44, amended article 153 of the Criminal Procedure Code to allow a judge, at the request of prosecutors, to restrict counsel’s access to case files or the authority to copy documents where it might “endanger the purpose of the investigation” by the state, in certain types of criminal investigations. The article lists criminal investigations related to eight types of crimes, including, e.g., intentional homicide, sexual assault, and sexual exploitation of children.  (Package Law, art. 44; Criminal Procedure Code, art. 153.)

Decision Annulling Some Internet Law Provisions

On December 8, 2015, the Constitutional Court struck down certain provisions of Law No. 5651 on the regulation of Internet content and combating crimes committed by means of online publications (referred to by the press as the Internet Law). (Ünsal, supra; Law on Internet Media Regulation of Publications and on Combating Crimes Committed by Means of Such Publications (Internet Law), Law No. 5651 (May 4, 2007, as last amended effective Apr. 15, 2015) (in Turkish).) One commenter stated that the case “stirred up questions as to whether the administration could restrict access to the Internet without a court order. The answer to that question is a plain ‘no.'” (Ünsal, supra.)

By virtue of the Decision, the Court nullified provisions:

  • requiring content providers to deliver data to, and to comply with measures imposed by, the Telecommunication Transmission Directorate (TÄ°B);
  • requiring host providers (e.g., Facebook, Twitter, YouTube) to store user traffic data for up to two years and categorizing the host providers by their rights and liabilities;
  • requiring host providers to deliver requested data and to comply with measures demanded by the TIB; and
  • requiring access providers to use alternative methods to restrict access to content for which an access restriction has been issued. (Id.)

Thus, based on the Decision, the personal data of Internet users “will not be stored and shared with the administration by private companies” and “[h]osting providers will not be categorized and made subject to different set[s] of regulations by the administration.” Also as a result of the ruling, Internet content will not be restricted at a judge’s discretion merely because it has the “same nature” as publications that have been restricted. (Id.)