Principles of data protection and civil procedure law are widely in conflict because of submitting several information or personal data to the court during the jurisdiction. Article 28 of Personal Data Protection Law no. 6698 ("KVKK") regulates the exceptions where the KVKK shall not apply: "Processing of personal data by judicial authorities and execution agencies with regard to investigation, prosecution, adjudication or execution procedures."1 Therefore, both personal data and special categories of personal data ("personal data") 2may be processed by the court without any processing conditions 3during the jurisdiction. However, every personal data submitting to the court shall not constitute issue. In this context, it is determined the extent to which the right of protection of personal data and the principles of civil proceedings conflict.4
- The Principle of Parties' Control and Bringing by Parties
According to Article 24 of Turkish Civil Procedure Code ("HMK") a judge shall not examine and rule a lawsuit ex officio without the request of either party.5 Therefore, the parties have the duty to present the facts and evidence to the court which may include the personal data. Herein, even facts and evidence are brought by parties, there is no explicit consent but implied consent. However, KVKK noted that data subject shall give explicit consent for processing of personal data.
- The Right to be Heard
The right to be heard 6is one of the most contending rights with the protection of personal data. Such right results to be learned personal data of persons participating in the proceedings by the parties. However, such persons may not intend especially their special categories of personal data to be learned by other party or persons. Herein, focusing and emphasizing one right means deterioration of the balance against the other right. In this context, it shall be determined that which rights are more significant for the parties and/or whether one can be sacrificed in order to ensure another.7The right to be heard is constitutional and procedural right and the privacy of life is fundamental right therefore, the question arises: "May the right to be heard be restricted?" Ones assume that the right to be heard may be restricted only with legislative regulation thus, the court shall not restrain the procedural right regardless whether the party consent. On the other hand, according to another view, restricting the one right may be possible whether it is compatible with principle of proportionality. Therefore, judge shall balance between the right to be heard and the right of protection of personal data, if one right request the confidential jurisdiction.8
- The Principle of Publicity
The publicity of the proceedings 9provides any person not involved in the proceedings to attend the hearing as a spectator and to follow the proceedings. Therefore, any person may acquire the personal data belonging to another. The first remedy for limiting the publicity principle is confidential jurisdiction. However, if one party is excluded from the jurisdiction, such party may claim that violation of the his/her right to ask, get information, participate to examination of evidence. Therefore, as mentioned above balance shall be considered.
- The Duty of the Judge's Clarification of the Case
Although the principle of bringing by the parties is applied the civil jurisdiction, the judge also has the duty to clarify the case10. The importance of the duty of the judge's clarification of the case arises if the parties do not materialize the allegations they claim. If the party with the burden of proof avoid to submit evidence to the court to protect the personal data, such party have to endure negative consequences of failure to provide the procedural burden.11
It is obvious that the right of protection of personal data conflict with the principles of civil procedure law. In this situation, parties shall consider which rights outweigh another. In addition to this, civil procedure legislation should be revise according to data protection principle especially for protecting the special categories of personal data belonging parties and other persons who are related the case. In conclusion, such issue may be solved with revise of procedure law legislation and balancing of interest of parties.
1 Article 28 of Turkish Personal Data Protection Law No. 6698
2 Article 3 and Article 6 of Turkish Personal Data Protection Law No:6698
3 Turkish Personal Data Protection Law, No:6698
4 Medeni Yargılama Hukukunda Kişisel Verilerin ve Sırların Korunması, Dr. S. Hilal Üçüncü, Oniki Levha Publication, İstanbul, 2019
5 Turkish Civil Procedure Law no. 6100
6 Article 27 of Turkish Civil Procedure Code no:6100
7 Medeni Yargılama Hukukunda Kişisel Verilerin ve Sırların Korunması, Dr. S. Hilal Üçüncü, Oniki Levha Publication, İstanbul, 2019
8 Medeni Yargılama Hukukunda Kişisel Verilerin ve Sırların Korunması, Dr. S. Hilal Üçüncü, Oniki Levha Publication, İstanbul, 2019
9 Article 28 of Turkish Civil Procedure Code no:6100
10 Article 31 of Turkish Civil Procedure Code no:6100
11 Medeni Yargılama Hukukunda Kişisel Verilerin ve Sırların Korunması, Dr. S. Hilal Üçüncü, Oniki Levha Publication, İstanbul, 2019
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