Events
Based on the Decree Law No. 667 on Measures Taken Under the State of Emergency No. 667 and the regulations in Law No. 6749, the passports of the applicants were canceled as a general precaution within the scope of canceling their passports as a general precaution. However, they were not given a special passport.
The lawsuits filed by the applicants separately in the Administrative Courts for the cancellation of the aforementioned proceedings were rejected. Thereupon, the applicants applied to the appeal law. The Regional Administrative Courts, which examined the appeal requests, rejected them, stating that the decision of the instance courts was in accordance with the law and procedure.
allegations
The applicants claimed that their right to respect for private life was violated due to the cancellation of their passports.
Court’s Evaluation
It has been understood that the applicants have close professional and personal ties with the country they want to go to and that the fact that they are not given a passport affects their private life. Considering this situation, it was concluded that the measures implemented, such as the cancellation of the passport and the rejection of the request for an ordinary passport, constitute an interference with the right to respect for private life, which is guaranteed by Article 20 of the Constitution.
Since the aforementioned measure applied against the applicants is contrary to the guarantees in Articles 13 and 20 of the Constitution in the ordinary period, it should be examined whether this situation is legitimate within the scope of Article 15 of the Constitution, which regulates the suspension and limitation of the use of fundamental rights and freedoms in extraordinary periods.
According to Article 15 of the Constitution, it is possible to partially or completely suspend the exercise of fundamental rights and freedoms during periods of war, mobilization or state of emergency (OHAL), and to take measures contrary to the guarantees envisaged in other articles of the Constitution. However, Article 15 of the Constitution does not grant unlimited authority to public authorities in this regard. Measures contrary to the guarantees stipulated in other articles of the Constitution must not interfere with the rights and freedoms listed in the second paragraph of Article 15 of the Constitution, must not be contrary to obligations arising from international law and must be to the extent required by the situation.
The right to respect for private life is not among the core rights that are prohibited to be touched in the second paragraph of Article 15 of the Constitution during periods of war, mobilization and state of emergency administration procedures. Therefore, in terms of these freedoms, it is possible to take measures contrary to the guarantees in the Constitution during the state of emergency.
In this case, it is necessary to determine whether the application of canceling the applicants’ passports is within the scope of Article 15 of the Constitution to the extent required by the situation. While making this determination, of course, the characteristics of the situation that caused the declaration of the state of emergency in our country and the conditions that emerged after the declaration of the state of emergency and changed in the process, as well as the characteristics of the event subject to the application and the attitude of the applicants will also be taken into account.
Onur Can Taştan’s Application
It has been observed that there is no criminal investigation or prosecution regarding the applicant, showing his affiliation with a terrorist organization and therefore engaging in activities that pose a threat to national security, and a court decision that prescribes a ban on leaving the country. Therefore, it was understood that the source of the restriction on the applicant’s private life was only an administrative act.
On the other hand, when the decision of the court of instance was examined, it was seen that the reason given by the administration regarding the cancellation of the applicant’s special stamped passport was satisfied, and the reasons why the applicant was not given an ordinary passport were not concretized by associating them with the applicant’s conditions.
In addition, it has been observed that the applicant’s special stamped passport was canceled on 16/8/2016, the ordinary passport request dated 3/3/2017 was not processed and the applicant was able to obtain an ordinary passport on 7/2/2020. In this case, considering that there is no criminal investigation or prosecution against the applicant or a court decision that will prevent him from abroad, it is understood that the measure was applied for a long time based on an administrative act.
In Terms of Article 15 of the Constitution
In this context, when the concrete event is evaluated, it should be underlined that there is no criminal investigation against the applicant, regarding his connection with the coup attempt or the Fetullah Terrorist Organization and/or the Parallel State Structure (FETO/PDY), the organization behind the attempt, or any terrorist organization. For this reason, it does not seem possible to say that the action was taken to prevent the applicant from escaping abroad and rendering the investigation or prosecution processes ineffective. The applicant was only taken out of public office by the Emergency Decree.
In the conditions of the state of emergency, there are some formations about national security about them.
Although it may be considered legitimate to restrict the entry and exit of people for a while on suspicion of having links with the public or groups, this practice should not turn into an indefinite nature and the passport acquisition process should not be left indefinite.
In this context, when the concrete case is examined, it has been evaluated that the measures taken against the applicant – considering the effect it will have on the applicant’s private life – should also fulfill the obligations expected from the state especially during the trial process under the conditions of the State of Emergency. In this context, it has been concluded that it is not compulsory and proportional that the measure applied in the form of not giving an ordinary passport is continued for an indefinite period of time with an administrative action without revealing the reasons specific to the applicant.
In this respect, Article 15 of the Constitution, which regulates the suspension and limitation of the use of fundamental rights and freedoms during the state of emergency, is not compatible with the guarantees in Articles 13 and 20 of the Constitution, which is the cancellation of the applicant’s passport regarding the right to respect for private life and the deprivation of the possibility of obtaining a passport for a long time. It was considered that this intervention, which was contrary to the law, did not justify it.
The Constitutional Court decided that the right to respect for private life had been violated for the reasons explained.
Regarding Yağmur Erşan Application
It has been seen that the measure taken against the applicant to cancel his passport was based on the criminal investigation conducted against him and the aim was to conduct the criminal investigation effectively.
On the other hand, when the decision of the court of instance was examined, it was seen that the general justification of the administration regarding the cancellation of the applicant’s passport was satisfied, that no further research and evaluation was carried out regarding the criminal investigation carried out against the applicant, and that the reasons for the administrative actions the applicant was subjected to were not concretized by associating them with the applicant’s subjective situation. In this case, it can be said that the implementation of the measure against the applicant – considering the close personal ties of the applicant with the country he wishes to go to – cannot be demonstrated to be a measured measure in a democratic society.
In Terms of Article 15 of the Constitution
In the present case, it is seen that an investigation was carried out against the applicant for the crime of being a member of FETÖ/PDY and that some data were obtained by the investigative authorities regarding the applicant’s use of the ByLock application, which is a program designed exclusively for the use and organizational communication of members of this terrorist organization. On the other hand, it has been clearly understood from the response of the administration to the court that the administrative proceedings, which are the subject of the application, are a measure for the effective conduct of criminal investigations under the State of Emergency. Therefore, in the present case, considering his position in the criminal investigation and his attitude during the investigation process, it can be said that the measures taken to prevent the applicant from escaping abroad should be considered legitimate under the State of Emergency.
In addition, it was observed that the administrative proceedings regarding the cancellation of the passport and the rejection of the passport request were carried out for the same reason and under the same legislation during the state of emergency, and the allegations of the applicant focused on the reason for these administrative actions, and the applicant did not provide explanations and documents regarding the next process. It is understood that the court reached a conclusion by considering the relevant legislation, the findings of the administration’s response, the conditions of the state of emergency and the aforementioned measure being a convenient way to ensure public order and security in the context of the fight against terrorist organizations. In this respect, it was considered that the cancellation of the applicant’s passport was a precaution to the extent required by the state of emergency conditions.
Therefore, it has been concluded that this intervention, which is contrary to the guarantees in Articles 13 and 20 of the Constitution regarding the applicant’s right to respect for private life, complies with the criteria in Article 15 of the Constitution, which regulates the suspension and restriction of the use of fundamental rights and freedoms during the State of Emergency.
The Constitutional Court decided that the right to respect for private life had not been violated for the reasons explained.
