Damages Due to the Illegal Processing of Personal Data
Summary: Due to the service defect in the maintenance of a report stating “Not Fit for Military Service,” and the unlawful acquisition of this report by certain media outlets, the damages arising from this situation must be compensated by the administration.
1. General Overview
According to Article 125/7 of the Turkish Constitution, the administration is obliged to compensate for damages resulting from its actions and decisions. Administrative lawsuits are the legal remedy that allows individuals to seek compensation for damages caused by administrative actions. The concept of administrative lawsuits is regulated in various provisions, notably in Articles 24 and 27 of the Danıştay (Council of State) Law and Article 2 of the Administrative Procedure Law (İYUK).
In general, administrative lawsuits are a broad term and are defined in Article 2 of İYUK as “lawsuits filed by those whose personal rights are directly affected due to administrative actions or decisions.” While filing a cancellation (annulment) lawsuit requires a mere violation of interests, in an administrative lawsuit, it is essential that the individual’s personal rights are directly violated. Administrative lawsuits, according to doctrine, include compensation lawsuits based on the administration’s actions, decisions, or administrative contracts, restitution lawsuits for unlawfully taken goods or money, and tax disputes regarding the validity and amount of imposed taxes.
2. Administrative Lawsuits Based on Administrative Acts
If the lawsuit is based on an administrative act, Article 12 of the Administrative Procedure Law (İYUK) states that those whose rights are violated by an administrative act may file an administrative lawsuit for compensation either directly or after filing a cancellation lawsuit. It is stated that a cancellation lawsuit and an administrative lawsuit for compensation can be filed simultaneously or in sequence, with the latter being initiated after the cancellation decision is finalized. The Danıştay rulings clearly state that “The absence of a cancellation lawsuit does not constitute a legal obstacle to the filing of an administrative compensation lawsuit, and it is explicitly permitted by law” and that “The fact that the illegality of the act has not been confirmed in a cancellation lawsuit does not necessitate the rejection of the compensation lawsuit filed due to the act.”
In cases where an administrative act leads to damage, individuals can file an administrative lawsuit directly for compensation, file a cancellation lawsuit and a compensation lawsuit together, or first file a cancellation lawsuit and later file a compensation lawsuit.
In these cases, the time for filing the lawsuit begins when the administrative act is enforced, not when it is issued. For administrative lawsuits based on administrative acts, the lawsuit must be filed within 60 days of notification of the act. If both a cancellation lawsuit and an administrative lawsuit are filed together, the time limit is also 60 days from the notification of the decision. If a cancellation lawsuit is filed first, then the time limit for the administrative lawsuit begins from the notification of the cancellation decision.
3. Administrative Lawsuits Based on Administrative Omissions
The concept of “administrative eylem” (action) should not be narrowly interpreted. An administrative act or contract may not always be the cause of a dispute; administrative inaction, or negligence of the administration, can also be considered as an administrative act that leads to harm. Such cases require a preliminary decision before filing the lawsuit. According to Article 13 of İYUK, “Those whose rights are violated by an administrative action must first apply to the relevant authority to request the remedy of their rights. They may file a lawsuit within one year from the date they learn about the act or five years from the date the act occurred, if their request is rejected or unanswered within 60 days.”
In lawsuits based on administrative actions, the administration’s liability stems from two main grounds: fault-based liability and strict liability.
4. Precedent-Setting Decision on Personal Data Protection in Administrative Lawsuits
In a lawsuit where the plaintiff argued that their “Not Fit for Military Service” report, issued after a medical examination at the Air Force Hospital, was unlawfully disclosed to the media due to administrative negligence, it was determined that the administration was at fault for failing to properly protect the report. The report, being classified as a sensitive personal data under the law, had been unlawfully obtained by the media, leading to widespread news stories that damaged the plaintiff’s reputation and dignity. The court ruled that the damages, arising from the unlawful disclosure of the health report, must be compensated by the administration. The decision, in line with the Turkish Constitution, the European Convention on Human Rights, and international agreements, emphasized that personal data, including health information, is protected under the right to privacy, and the administration’s failure to safeguard this information resulted in a violation of the plaintiff’s rights.
The court concluded that the compensation claim was valid, and the decision was upheld on appeal. [Danıştay 15th Chamber Decision 2015/101001 E and 2016/664 K.]
Attorney Yalçın TORUN
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