Top court annuls rules allowing police to seize digital devices and copy data
The Constitutional Court has annulled several provisions of Article 134 of the Criminal Procedure Code, which regulates the searching, copying, and seizure of computers, computer programs, and computer files, finding them unconstitutional.
The top court did not find the entire regulation allowing searches on digital materials during criminal investigations to be unconstitutional, according to the verdict published today in the Official Gazette. However, it annulled certain provisions regarding the seizure of devices for copying computer data and conducting analysis.
The Bursa 1st Penal Court of First Instance brought the challenge in connection with an anti-smuggling case. The local court applied to the Constitutional Court, arguing that certain provisions in Article 134 violated the right to privacy and the protection of personal data.
The objection argued that there were insufficient safeguards regarding which data would be examined during digital searches and copying, how copied data would be protected, how long it would be retained, and how irrelevant personal data would be filtered out.
Digital search 'legitimate'
A majority of the Constitutional Court members did not view searching computers and digital materials as entirely unconstitutional. The court stated that goals such as reaching the material truth in criminal investigations, preventing the loss of evidence, and fighting crime effectively are legitimate.
The ruling noted that computer searches require "strong suspicion based on concrete evidence" and the "impossibility of obtaining evidence by other means." Therefore, the court concluded that the search measure was bound by specific conditions and did not constitute arbitrary authority.
However, the Constitutional Court found provisions regarding the copying of digital data and the seizure of devices for analysis to be unconstitutional.
The annulled provisions allowed for copying all or part of the data on computers, computer programs, and computer files, as well as seizing devices to perform analysis and extract necessary copies.
Insufficient safeguards
The court emphasized that digital devices can contain vast amounts of personal data. The ruling stated that adequate safeguards regarding the protection of data irrelevant to the investigation, retention periods, destruction, return, and effective legal remedies for those concerned were not clearly regulated in digital copying and seizure procedures.
According to the Constitutional Court, this uncertainty creates a risk of disproportionate interference with the right to respect for private life and the right to demand the protection of personal data.
The core of the decision is that access to digital evidence is possible within the scope of a criminal investigation, but it cannot be done in an unlimited and unguarded manner.
The court evaluated the annulled provisions under Article 13 of the Constitution, which covers criteria for restricting fundamental rights, and Article 20, which protects the privacy of private life and the right to protection of personal data.
The court pointed out that procedures performed on digital equipment have a different nature than traditional search and seizure measures. A computer or digital copy can contain not only evidence related to the investigation, but also a large amount of data belonging to the person's private life, communications, professional activities, and third parties.
The seizure of digital equipment has been a problem particularly for journalists, hampering their work due to data loss and the fact that seized equipment is often not returned for months, forcing them to purchase new devices.
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Kurdish journalists left without computers after police raid
Fate of Confiscated Digital Devices on Parliamentary Agenda
New legislation to be prepared
The Constitutional Court delayed the effective date of the annulment, stating that a legal vacuum could arise if the decision took effect immediately. Accordingly, the annulment provisions will enter into force nine months after the publication of the decision in the official gazette.
During this period, parliament is expected to introduce a new regulation in Article 134 containing new safeguards regarding the copying, retention, filtering, destruction of digital evidence, and legal remedies for those concerned.
Constitutional Court members İrfan Fidan, Muhterem İnce, Yılmaz Akçil, Ömer Çınar, and Metin Kıratlı wrote dissenting opinions against the decision.
The dissenting opinions argued that the current regulation provides adequate protection through judicial decisions, the right to object, and criminal procedure guarantees. The dissenting members did not join the annulment decision, stating that obtaining and protecting digital evidence is mandatory for criminal trials. (Mİ/VK)
