Decisions Concerning Applications Alleging Violation Of The Right To Respect For Private Life Due To Passport Cancellation
Events
Based on the Decree Law No. 667 on the Measures Taken within the Scope of the State of Emergency (Decree Law No. 667) and the provisions of Law No. 6749, the applicants’ passports were cancelled as a general measure within the scope of the cancellation of the passports of persons who are considered to be in contact and affiliated with the terrorist organisation and they were not issued a public passport despite their requests.
Separate lawsuits filed by the applicants at the Administrative Courts for the cancellation of the aforementioned procedures were rejected. Thereupon, the applicants applied to the legal remedy of appeal. The Regional Administrative Courts, which examined the requests for appeal, rejected them, stating that the decisions of the courts of first instance were 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.
The Court’s Assessment
It is understood that the applicants have close professional and personal ties with the country they want to visit and the refusal to issue them a passport affects their private lives. Considering this situation, it has been concluded that the measures applied in the form of cancellation of the passport and refusal of the request to issue a personal passport constitute an interference with the right to respect for private life 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 is necessary to examine 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, mobilisation or state of emergency (State of Emergency) and to take measures contrary to the guarantees stipulated in other articles of the Constitution. However, Article 15 of the Constitution does not grant unlimited authority to public authorities in this respect. Measures contrary to the safeguards provided for in other articles of the Constitution must not touch 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 prohibited to be touched under the second paragraph of Article 15 of the Constitution during periods of war, mobilisation and State of Emergency. Therefore, it is possible to take measures contrary to the guarantees in the Constitution in terms of these freedoms during the State of Emergency.
In this case, it is necessary to determine whether the cancellation of the applicants’ passports was to the extent required by the situation within the scope of Article 15 of the Constitution. While making this determination, the characteristics of the situation that led to the declaration of a 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 incident subject to the application and the attitude of the applicants will be taken into consideration.
Regarding the Application of Onur Can Taştan
It has been observed that there is no criminal investigation or prosecution against the applicant indicating that he is associated with a terrorist organisation and that the applicant has been involved in activities that constitute a threat to national security, and that there is no court decision imposing a ban on leaving the country. Therefore, it is understood that the source of the restriction on the applicant’s private life is only an administrative act.
On the other hand, when the decision of the court of first instance was examined, it was observed that the reasons given by the administration for the cancellation of the applicant’s passport with a special stamp were sufficient, and the reasons for not issuing a public passport to the applicant were not concretised in relation to the applicant’s circumstances.
It was also observed that the applicant’s passport with a special stamp was cancelled on 16/8/2016, his request for a personal passport dated 3/3/2017 was not processed and the applicant was able to obtain a personal passport on 7/2/2020. In this case, considering that there was no criminal investigation or prosecution opened against the applicant or a court decision that would prevent him from travelling 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
İn this context, when the concrete case is evaluated, it should be underlined that there is no criminal investigation against the applicant on the grounds of his connection to the coup attempt or to the Fetullahist Terrorist Organisation and/or Parallel State Structure (FETO/PDY), the organisation behind the coup attempt, or to any other terrorist organisation. Therefore, it does not seem possible to say that the applicant acted with the aim of preventing him from fleeing abroad and rendering the investigation or prosecution processes against him ineffective. The applicant was only dismissed from public office by the State of Emergency Decree Law.
Although it may be legitimate to restrict the entry into and exit from the country for a certain period of time due to the suspicion that the applicant has links with certain organisations or groups that threaten national security, this practice should not be indefinite and the process of obtaining a passport should not be left indefinite.
In this context, when the concrete case is examined, it is assessed that the obligations expected from the state, especially during the judicial process, should be fulfilled under the state of emergency conditions, taking into account the impact of the measure on the applicant’s private life.İn this context, it has been concluded that it is not compulsory and proportionate to continue the measure applied in the form of not issuing a public passport for a long time in an indefinite manner with an administrative act without revealing the reasons specific to the applicant.
In this respect, it has been evaluated that Article 15 of the Constitution, which regulates the suspension and limitation of the use of fundamental rights and freedoms during the State of Emergency, does not legitimise this interference to the applicant’s right to respect for private life in the form of cancelling his passport and depriving him of the opportunity to obtain a passport for a long time, which is contrary to the guarantees in Articles 13 and 20 of the Constitution.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained.
Regarding the Application of Yağmur Erşan
It has been observed that the measure for the cancellation of the applicant’s passport was based on the criminal investigation against the applicant and the purpose was to carry out the criminal investigation effectively.
On the other hand, when the decision of the Court of First Instance is examined, it is seen that the general justification given by the administration for the cancellation of the applicant’s passport was sufficient, no further investigation and evaluation was made regarding the criminal investigation carried out against the applicant, and the reasons for the administrative actions that the applicant was subjected to were not concretised in relation to the subjective situation of the applicant. In this case, it can be said that it cannot be demonstrated that the application of the measure against the applicant is a proportionate measure in a democratic society, considering the applicant’s close personal ties with the country he wants to visit.
In terms of Article 15 of the Constitution
İn the concrete case, it is seen that the applicant is being investigated for the crime of being a member of FETÖ/PDY and some data has been reached by the investigation authorities that the applicant used the ByLock application, which is a programme designed exclusively for the use and organisational communication of members of this terrorist organisation. On the other hand, it is clearly understood from the administration’s response to the court that the administrative actions subject to the application are a measure for the effective conduct of criminal investigations under the State of Emergency. Therefore, in the concrete 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 fleeing abroad should be considered legitimate under the State of Emergency.
In addition, it has been observed that the administrative actions regarding the cancellation of the passport and the refusal of the passport request were carried out for the same reason and in accordance with the same legislation during the State of Emergency, the applicant’s allegations focused on the reason for these administrative actions, and the applicant did not provide explanations and documents regarding the subsequent process. It is understood that the Court reached a conclusion by considering the relevant legislation, the determinations in the administration’s response, the State of Emergency conditions and the fact that the aforementioned measure is a convenient way to ensure public order and security in the context of combating terrorist organisations. In this respect, it is considered that the cancellation of the applicant’s passport is a measure to the extent required by the situation under the State of Emergency.
Therefore, it is concluded that this interference with the applicant’s right to respect for private life, which is contrary to the guarantees in Articles 13 and 20 of the Constitution, is in accordance with the criteria in Article 15 of the Constitution, which regulates the suspension and limitation 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 was not violated for the reasons explained.
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