The measures taken under the state of Emergency Decree No. 667 (Decree No. 667), and based on the regulations in the Law No. 6749, the terrorist organization as a general measure of iltisak and liaison with the cancellation of passports of people who are thought to be within the scope of revoked the passport of the applicant, and in spite of the demands themselves ordinary passport was not given.
The cases filed by the applicants separately in the Administrative Courts with the request to cancel the aforementioned transactions were rejected. Accordingly, the applicants applied to the appeal law. The Regional Administrative Courts, which examined the requests for appeals, refused, stating that the decision of the courts of instance was in accordance with the law and procedure.
The applicants claimed that their right to respect for private life was violated due to the cancellation of their passports.
Evaluation of the Court
It is understood that the applicants have close professional and personal ties with the country they want to go to and that the lack of a passport affects their private lives. Taking into account this situation, the measures applied in the form of cancellation of the passport and refusal of the request to issue a public passport are included in Article 20 of the Constitution. it has been concluded that it constitutes an interference with the right to respect for private life guaranteed by the article.
The measure applied against the applicants was adopted during the ordinary period in accordance with Article 13 of the Constitution. and 20. since it is contrary to the guarantees contained in articles 15 of the Constitution, which regulates the cessation and limitation of the exercise of fundamental rights and freedoms during extraordinary periods, this situation is contrary to the guarantees contained in Articles 15 of the Constitution. it is necessary to examine whether it is legitimate within the scope of the article.
Article 15 of the Constitution. according to its article, it is possible to partially or completely stop the exercise of fundamental rights and freedoms during periods of war, mobilization or state of emergency (state of Emergency) and to take measures contrary to the guarantees provided for in other articles of the Constitution for them. However, Article 15 of the Constitution. the article does not grant unlimited authority to public authorities in this regard. Measures contrary to the guarantees provided for in other articles of the Constitution are required by Article 15 of the Constitution. it should not touch the rights and freedoms set forth in the second paragraph of its article, should not be contrary to obligations arising from international law, and should be to the extent required by the situation.
The right to respect for private life is enshrined in Article 15 of the Constitution during the periods when the methods of war, mobilization and state of emergency management were adopted. it is not among the core rights dec are prohibited to be touched in the second paragraph of the article. Therefore, it is possible to take measures contrary to the guarantees in the Constitution in times of EMERGENCY in terms of these freedoms.
In this case, the application for revocation of applicants’ passports is required by Article 15 of the Constitution. within the scope of the article, it is necessary to determine whether the situation is to the extent required. In making this determination, of course, the characteristics of the situation that caused the declaration of a state of emergency in our country and the circumstances that arose after the declaration of a 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 account.
Onur Can Taştan in Terms of Application
It was found that there was no court decision imposing a ban on going abroad with a criminal investigation or prosecution indicating the applicant’s relationship with a terrorist organization and therefore that the applicant was engaged in activities that posed a threat to national security, as well as a ban on going abroad. Therefore, it has been understood that the source of the limitation on the applicant’s private life is only an administrative action.
On the other hand, when the decision of the court of cassation was examined, it was seen that the reasons for not giving the applicant a public passport were not concretized by associating them with the conditions of the applicant, which were satisfied with the grounds reported by the administration regarding the cancellation of the applicant’s specially stamped passport.
In addition, it was found that the applicant’s specially stamped passport was canceled on 16/8/2016, the request for a public passport dated 3/3/2017 was not processed, and the applicant was able to obtain a public passport on 7/2/2020. In this case, considering that there is no criminal investigation or prosecution opened against the applicant or a court decision that will prevent him from going abroad, it is understood that the measure has been applied for a long time based on an administrative procedure.
Article 15 of the Constitution. In Terms of Its Substance
Considering the concrete incident in this context, it should be emphasized that there is no criminal investigation against the applicant due to his connection with the coup attempt or with the Fetullahist Terrorist Organization and/or the Parallel State Organization (FETÖ/PDY), which is the structure behind the attempt, or with any terrorist organization. For this reason, it does not seem possible to say that the applicant was acting in order to prevent him from defusing the investigation or prosecution processes by fleeing abroad. A measure of dismissal from public office was applied against the applicant only by the Decree Law of the State of Emergency.
Although it may be considered legitimate to restrict the entry and exit of people from the country for a while on suspicion of having connections with some formations or groups related to national security in the conditions of EMERGENCY, 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 was examined, it was evaluated that the measure applied against the applicant -taking into account the impact it would have on the applicant’s private life – should also be fulfilled in the conditions of EMERGENCY, especially the obligations expected from the state during the trial process. In this context, it was concluded that the measure applied in the form of non-issuance of a public passport was not mandatory and restrained to continue 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 regulating the cessation and limitation of the use of fundamental rights and freedoms during the State of Emergency period. article 13 of the Constitution, which is made in the form of revoking the applicant’s passport in order to respect the applicant’s right to respect for private life and depriving him of the opportunity to obtain a passport for a long time. and 20. it has been evaluated that this intervention, which is contrary to the guarantees in the articles, does not make it legitimate.
The Constitutional Court has decided that the right to respect for private life has been violated on the grounds described.
From the Point of View of the Application of Yağmur Erşan
It has been observed that the measure for the revocation of the applicant’s passport was based on the criminal investigation carried out against him and the aim was to conduct the criminal investigation effectively.
On the other hand, when the decision of the court of cassation was examined, it was seen that the applicant’s passport was satisfied with the general justification reported by the administration regarding the cancellation, there was no further investigation and evaluation of the criminal investigation conducted against the applicant, the reasons for the administrative actions that the applicant was subjected to were not concretized by relating to the subjective state of the applicant. In this case, it can be said that the application of the measure against the applicant -taking into account the close personal ties of the applicant with the country he wants to go to- cannot be revealed that it is a measured measure in a democratic society.
Article 15 of the Constitution. In Terms of Its Substance
In the concrete case, it is seen that an investigation was conducted against the applicant for being a member of FETO/PDY and that some data were obtained by the investigating authorities regarding the applicant’s use of the ByLock application, a program designed exclusively for the use and organizational communication of members of this terrorist organization. On the other hand, it was clear from the administration’s response to the court that the administrative actions subject to the application were a measure aimed at the effective conduct of criminal investigations within the scope of the State of Emergency. Therefore, taking into account the position of the applicant in the criminal investigation and his position in the investigation process in the concrete case, it can be said that the measures taken to prevent the applicant from fleeing abroad should be considered legitimate in the conditions of the State of Emergency.
Besides, the denial of the request for the revocation of the passport and the passport of emergency rule and the administrative procedures for the same reason, depending on the process being performed in the same laws, the administrative processes focused on the cause of the applicant’s claims, the applicant following a description of the process and the document it was observed that he did not. It is understood that the court also reached a conclusion by considering the relevant legislation, the findings in the administration’s response, the conditions of the State of Emergency and the considerations that the measure is a favorable way to ensure public order and security in the context of combating terrorist organizations. In this respect, it has been assessed that the revocation of the applicant’s passport is a precaution to the extent required by the situation in the conditions of the State of Emergency.
Therefore, Article 13 of the Constitution on the applicant’s right to respect for private life. and 20. 15 of the Constitution, which regulates the cessation and limitation of the use of fundamental rights and freedoms during the period of EMERGENCY of this intervention contrary to the guarantees contained in its articles. it was concluded that it complies with the criteria in the article.
The Constitutional Court has decided that the right to respect for private life has not been violated on the grounds described.