Suçun maddi unsuru ve ceza muhakemesindeki süjeler açısından ölüm sonrasında kişisel verilerin korunması

Abstract

This study addresses the issue of post-mortem protection of personal data from the perspectives of criminal law and criminal procedure law. It seeks to answer two main questions: (i) whether unlawful acts committed on the personal data of deceased persons after death constitute the offences dedicated to the protection of personal data under Articles 135–138 of the Turkish Penal Code (“TPC”), and (ii) what the implications of such acts are for criminal procedure law. The study’s preliminary finding is that, pursuant to Article 28 of the Turkish Civil Code and Article 3 of the Personal Data Protection Law, legal personality ends upon death; therefore, data relating to deceased persons cease to qualify as “personal data.” Consequently, acts committed on such data after death do not constitute the offences regulated under TPC Articles 135–138. The concept of “victim” in criminal law supports this conclusion, since -particularly within the scope of Articles 135–138- the victim of a crime can only be a natural person who is alive at the time the act is committed. The study further notes that, in cases of violations involving post-mortem data, the relatives of the deceased cannot obtain the procedural status of “injured party” or “intervenor” in criminal proceedings, except where the data also relate to living persons connected to the deceased, who may then be considered victims. Nevertheless, it is emphasized that a dogmatic need for a new legal framework addressing the protection of personal data after death in light of growing digitalization. They argue that such protection should primarily be ensured through civil law or administrative sanction mechanisms, while criminal law should serve as a measure of last resort.This study addresses the issue of post-mortem protection of personal data from the perspectives of criminal law and criminal procedure law. It seeks to answer two main questions: (i) whether unlawful acts committed on the personal data of deceased persons after death constitute the offences dedicated to the protection of personal data under Articles 135–138 of the Turkish Penal Code (“TPC”), and (ii) what the implications of such acts are for criminal procedure law. The study’s preliminary finding is that, pursuant to Article 28 of the Turkish Civil Code and Article 3 of the Personal Data Protection Law, legal personality ends upon death; therefore, data relating to deceased persons cease to qualify as “personal data.” Consequently, acts committed on such data after death do not constitute the offences regulated under TPC Articles 135–138. The concept of “victim” in criminal law supports this conclusion, since -particularly within the scope of Articles 135–138- the victim of a crime can only be a natural person who is alive at the time the act is committed. The study further notes that, in cases of violations involving post-mortem data, the relatives of the deceased cannot obtain the procedural status of “injured party” or “intervenor” in criminal proceedings, except where the data also relate to living persons connected to the deceased, who may then be considered victims. Nevertheless, it is emphasized that a dogmatic need for a new legal framework addressing the protection of personal data after death in light of growing digitalization. They argue that such protection should primarily be ensured through civil law or administrative sanction mechanisms, while criminal law should serve as a measure of last resort.