Cancellation Of Rules Restricting Freedom Of Movement Abroad
A. Rule Governing the Issuance of Passports with Special Stamps to Lawyers
Subject Rule
The rule subject to the lawsuit stipulates that lawyers who are under investigation or prosecution for certain offences shall not be granted a special stamped passport limited to the duration of the investigation or prosecution.
Grounds for the Request for Cancellation
In the petition for the lawsuit, in summary; it was claimed that the rule in question restricts the freedom of travel by stipulating certain conditions for lawyers in terms of holding a passport with a special stamp, and that the rule is unconstitutional.
Evaluation of the Court
As stipulated in the rule, it is clear that the refusal to issue a special stamped passport to the person concerned on the grounds that he/she is being investigated or prosecuted for certain offences does not result in the characterisation of the person as a criminal and the imposition of criminal sanctions against him/her.
The fact that the legislator stipulates certain conditions while regulating the persons who can benefit from specially stamped passports is only a limitation for obtaining such passports. Accordingly, the rule subject to the lawsuit, which can be summarised as stipulating certain conditions in accessing the opportunities provided by travelling abroad as a holder of a passport with a special stamp, has no aspect that limits the freedom to travel abroad guaranteed under Article 23 of the Constitution.
Since it can be said that lawyers who are under investigation or prosecution for certain offences and lawyers who are not under investigation or prosecution for certain offences are in a similar situation that can be compared, it can be said that the rule creates a difference between them.
The inability of the lawyers within the scope of the rule subject to the lawsuit to obtain a special stamped passport is not of a permanent nature and is limited to the continuation of the investigations or prosecutions carried out against them for the aforementioned offences.
An appropriate balance has been established between the aim pursued by the foreseen difference in the conditions for obtaining the opportunity to obtain a passport with a special stamp and the means envisaged by the rule. In this context, no excessive burden has been imposed on the lawyers within the scope of the rule according to the purpose of the foreseen difference brought by the rule. In this respect, there is nothing contrary to the principle of equality in the rule.
For the reasons explained above, the Constitutional Court has decided that the rule is not unconstitutional and the request for cancellation is rejected.
B. Rule Restricting the Freedom of Travelling Abroad
Rules Subject to Litigation
The rules subject to the lawsuit generally stipulate that those whose passports have been cancelled due to their membership in, affiliation with or contact with structures, formations or groups or terrorist organisations that are determined to pose a threat to national security, and those for whom an administrative action has been taken to deny a passport, may be granted a passport by the Ministry of Interior based on the results of the investigation to be conducted by law enforcement units, provided that they meet the conditions specified in the rules.
Grounds for Cancellation Request
In the petition for the lawsuit, in summary, it was argued that the rules are unconstitutional, stating that the rules authorise the administration in an area where the Constitution explicitly stipulates a judge’s decision, eliminate the opportunity of individuals to work abroad, and constitute an immeasurable interference with their private lives.
Evaluation of the Court
Article 23 of the Constitution stipulates that a citizen’s freedom to travel abroad can only be restricted due to a criminal investigation or prosecution and only by a judge’s decision.
Since certain conditions are stipulated by the subject rules for those who are allowed to obtain a passport, the rules impose a restriction on the freedom to travel abroad. The fact that some people are granted this opportunity by the rules leads to the inability to obtain a passport for those who are not granted this opportunity, and therefore, the subject rules impose a restriction on the said freedom for these people as well.
A regulation on the freedom to travel abroad, which is a dimension of the freedom to travel and is specially guaranteed, must not be contrary to the reasons for limitation set forth in Article 13 of the Constitution and the guarantee provided therein.
It is clear that the rules subject to the lawsuit restrict the issuance of passports to individuals without being subject to criminal investigation and prosecution and without being subject to a judge’s decision.
Considering that, pursuant to Article 23 of the Constitution, the freedom to travel abroad can only be restricted due to criminal investigation or prosecution and is subject to the guarantee of a judge’s decision, it is seen that some of the limitation grounds stipulated by the subject rules do not comply with the limitation grounds specified in the aforementioned article of the Constitution and are contrary to the guarantee of a judge’s decision attached to these grounds. In this respect, the rules restrict the freedom to travel abroad in violation of the Constitution.
For the reasons explained above, the Constitutional Court has decided that the rules are unconstitutional and that they shall be cancelled and shall enter into force one year after the publication of the decision in the Official Gazette.
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