Benchmarking and Review of the Video Surveillance Regulatory Framework and Mechanisms - 11 July 2013

Component A (Legislative Framework)

Activity A.7 (Benchmarking and review of the video surveillance regulatory framework and mechanisms in selected EU countries and Turkey (Mobil Elektronik Sistem Entegrasyonu - MOBESE) with a view to enhanced civilian oversight

Subject: Conference in Ankara on the 11th of June.

Participants: officials fom MoI, gendarmerie, police, coast guard and customs administration.


Prof. Dr. Ralf P. Schenke (Chair for Public Law, University Würzburg) informed the audience that there is a single act providing the legal basis of CCTV in German Law. He continued that the are other acts which are also related with the use of CCTV in federal and regional level ( ex. regional police acts as well as the special Federal Security law and the Criminal Procedure Act). Underlining the fact that video surveillance does not differ from other types of data collection he enlightened the participants about the constitutional framework relating to individual data collection: The right to informational self-determination; certain, clear and area specific regulations, organizational and procedural safeguards (The Federal Constitutional Court in Germany points out, procedural and organizational matters are of particular relevance to the fundamental right to informational self-determination. The Federal court suggested to constitutionally warrant the mandatory erasure of individual data or its oversight by a data protection officer) and the principle of proportionality which he referred to the German Constitutional Courts Jurisprudence: "Firstly, the legislator has to pursue a legitimate aim. Secondly, the intervention has to be suitable to realize the aim. The third part of the examination is the necessity of the intervention. In this part it is also checked if there is an at least equally effective but less intrusive mean to comply with the purposes of the intervention. At the fourth and last stage of the examination the principle of proportionality is examined in a narrower sense. As a standard of review, it requires state action not to feature an inappropriate relation between the expected advantages of the action compared to its downsides especially in terms of the gravity of the intrusion with fundamental rights".

Subsequently he referred to the decision of the German Federal Constitutional Court in "Regensburg Case". This case was about the surveillance of a public square in the Bavarian city of Regensburg on the site of a former synagogue in order to protect this work of art from vandalism and graffiti. Schenke stated that in the Bavarian Data Protection act there was a provision for data collection which was: "Collecting personal data shall be lawful when knowledge of such data is necessary for the controller to perform its tasks" but it was accepted by the Constitutional Court that data protection action did not meet the requirement of a certain, clear and area specific basis in statutory law.

Assist. Prof. Dr. Elif Küzeci from Bahcesehir University Faculty of Law made a presentation about the Data Protection and CCTV’S in Turkey. After emphasizing the key aspect regarding the need for data protection with is developments in computer and new communication technologies having a significant function on increasing the power of state. Thus, having the knowledge is a major component of power. She puts down these questions: Where and by whom are the information which the state and private enterprises gather via tools developing and becoming widespread day by day recorded, for what purposes and how long are they used, what processes are made on data, and whom are they transferred to? She underlined that the answer to these questions will show how much “personal integrity”, the inseparable part of human dignity, is protected.

She further pointed out the main existing legal provisions in Turkey which are the articles 20 and 90 of the Turkish Constitution, the latter obliging the state to act in accordance with the human rights conventions. She also referred to the Turkish Civil Code Art.24 stating that disclosure or misuse of personal data can be considered as an infringement of personal rights. Lastly she pointed out the related articles of the Turkish Criminal Code 135,136 which are about unlawful recording and delivery of personal data and art. 138 providing penalty in case of failure to destroy personal data after the expiry of the legal period. Following this, she focused on the measures taken by the authorities and their impact on "right to privacy" giving an example of an important European Court Of Human Right's decision in the case of P.G. and J.H. v. United Kingdom.

Prof. Dr. Feridun Yenisey presented the technical surveillance in Criminal Procedural Law and audio-visual procedural acts in Criminal procedural law. He also pointed out the differing aspects of preventive video surveillance and judicial video surveillance services.

Assistant Professor Ahmet Yayla adressed the participants with the law of video surveillance and individual data protection. He emphasized that the notion of administration is broader than the police, gendarmerie regarding the collection of data (it includes public health organisations, civil registry offices etc). he concluded that a legal basis is needed for these organisations as well in order to protect the right of privacy and principle of proportionality.