The Council of State is the highest administrative Court in Turkey’s administrative jurisdiction. The Council of State Plenary Session of Administrative Law Chambers is in charge of reviewing the appeal decisions of the administrative courts and the decisions of the administrative case chambers as the first instance court.
In this article, a decision of the Council of State Plenary Session of Administrative Law Chambers published on September 29, 2022, has been examined. The decision may magnify the concerns of the “surveillance society.”
On February 27, 2017, the Ministry of Interior of the Republic of Turkey sent a letter to all provinces. The letter is related to the availability of front, exterior, and interior cameras and recording devices in a taxi, minibus, and bus-type vehicles used in urban passenger transportation. The camera system should be able to record on a 24/7 basis and keep the recordings for at least 7 days. This application aimed to investigate forensic incidents, especially terrorist incidents, to quickly access the evidence and information about the perpetrators and finally to illuminate the crimes.
The Ministry gave the authority to decide on the operation of this system to the Transportation Coordination Centers and Provincial Traffic Commissions within the municipalities. That is the part that seems legally problematic.
In the following process, lawsuits were filed in different administrative courts by the Chambers of Drivers and Automobile Craftsmen against the decisions regarding the obligation to have cameras established by the Transportation Coordination Centers. As a result of the differences in the court decisions, the Council of State Plenary Session of Administrative Law Chambers had to make an examination.
One of the local courts; evaluated that the presence of cameras and sound recording systems in taxis/buses interferes with the private life of individuals. The Court decided that the authority to make decisions regarding this practice is not in the Transportation Coordination Centers. According to the Constitution of the Republic of Turkey, an application that limits fundamental rights can only be made with a provision of law. An application that restricts fundamental rights cannot be executed with a ministry letter.
With the exhaustion of legal remedies regarding this decision, the decision of the local court that such an application cannot be carried out with the decision of the Transportation Coordination Centers became final.
The decision of another local court on the same issue was in the opposite direction. According to the Court, although commercial taxis carry fewer passengers than other public transport vehicles, commercial taxis are within the scope of the public sphere. The presence of cameras and sound recording systems in taxis and buses provides occupational and life safety to the driver and traffic safety. In addition, the application has been introduced for investigating judicial or terrorist incidents and solving them quickly. The Court concluded that such a practice would not violate the privacy of private life, and the lawsuit was dismissed.
With the rejection of the objection against the decision, two different final decisions have emerged on the same issue. An application was made to the Council of State to eliminate the contradiction between the decisions.
Examining the dispute, the Council of State Plenary Session of Administrative Law Chambers, with its decision on 25.02.2022 with a majority of votes (9 votes to 6), found the decision of the Transportation Coordination Centers to be lawful by using their authority based on the Ministry’s letter.
The Board stated that there is no doubt that commercial taxi-type vehicles have the quality of public space. According to the Board, for this reason, audio and video recordings in these vehicles do not violate the driver’s or passenger’s privacy.
Other grounds on which the Board is based can be summarized as follows:
– The majority of the country’s population lives in urban centers. For this reason, ensuring city security is vital to continue community life in peace and security.
– The regulatory authority given to the Transportation Coordination Centers is in line with the legislation on Municipalities.
While discussing the interference with privacy, the Board referred to the Lopez Ribalda et al. v. Spain decision of the European Court of Human Rights. The incident subject to the decision is about a supermarket owner experiencing economic losses, watching their employees with a hidden camera. Employees were monitored with hidden cameras, and the thief was identified.
In the discussion of whether the employer’s surveillance of the checkout area in the supermarket with a hidden camera to illuminate the suspicion of theft is a violation of the privacy of the market employees, the ECHR has concluded that there is no violation with its final decision dated 17.10.2019 with a majority of votes. Evaluating based on proportionality, the Court stated that the measures taken due to the suspicion of theft were limited in terms of the monitored areas and personnel and that the time limit required to confirm the suspicion of theft was not exceeded in terms of time. Considering that the video recordings were only watched by the supermarket manager, the company’s legal representative, and the union representative, the Court concluded that the interference with privacy was proportionate.
Referring to this decision, the competent Board in Turkey has decided that the Transport Coordination Centers’ decision taken for a legitimate purpose cannot be said to violate the privacy of private life.
There were also members of the Court who opposed the decision. These members stated that there is no legal basis for decisions that involve interference with private life. Transport Coordination Centers should not be able to decide on such a public oversight, especially since there is no legal regulation directly authorizing them in this regard.
In the cited ECHR decision, the proportionality assessment was made thoughtfully. In our opinion, it cannot be considered lawful to open the way for indefinite and unlimited surveillance in public vehicles by an administrative decision by mentioning the classical obligations of the State, such as the fight against terrorism and the prevention of crime.
Transportation Coordination Centers have authorized traffic safety bodies within the Municipality’s borders. These bodies are empowered to make decisions on public safety, which is one of the main reasons for the existence of the State. Moreover, this authorization was not made by law but by the Ministry’s letter. This violates the constitutional principle that fundamental rights and freedoms can only be limited by law.
The fight against terrorism and crime is “one of the main reasons for the existence” of the State. On the other hand, a modern, democratic, secular, and social state of the law must ensure that its citizens lead a life worthy of human dignity. Therefore, while fulfilling an obligation, it is an obligation to observe compliance with other fundamental rights.
The constant monitoring of vehicles such as taxis and buses, considered public spaces, without any limitation in terms of time, subject, or location, with a camera and sound recording systems, equivalent to the State being in a permanent state of emergency. This situation will lead to the contradiction of proportionality control in the limitation of fundamental rights and freedoms, at least against the sub-principles of proportionality and necessity.
This issue should be examined from a constitutional perspective. In the freedom-security dilemma/balance, the practices to be implemented with an evaluation made in terms of security may lead to political systems in which the citizens are not/will not be very happy to be in.
Translated into english by Çimen Tatar.
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