02 Sep PETITION FOR UNCONSTITUTIONALITY
A. Rule Governing The Issuance Of Special Stamped Passports To Lawyers
The Rule In The Case
The case rule stipulates that lawyers who are investigated or prosecuted for certain crimes should not be given special stamped passports, limited to the duration of the investigation or prosecution.
Reason For Cancellation Request
In summary, the petition stated that the rule subject to the lawsuit limits the freedom of travel by providing for a number of conditions for lawyers to be a holder of a special stamped passport, and it was argued that the rule is unconstitutional.
Assessment Of The Court
It is clear that the failure to issue a special stamped passport to the person concerned on the grounds that he or she has been investigated or prosecuted for certain crimes, as provided for in the rule, does not result in the person being considered a criminal and applying criminal sanctions against him or her.
It is only a limitation on the acquisition of such passports that the legislator provides for a number of conditions when making arrangements for people who may benefit from special stamped passports. Accordingly, the rule on the subject of litigation, which can be summarized as providing for a number of conditions in achieving the opportunities provided for by the holder of a special stamped passport, is 23 of the Constitution. the article does not limit the freedom to go abroad, which is guaranteed.
It can be said that a difference is made between them and the rule, since lawyers who are investigated or prosecuted for certain crimes and are not available for comparison can be said to be in a similar situation decisively.
The fact that lawyers covered by the subject matter rule cannot obtain a special stamped passport is not of a permanent nature, but is limited to the continuation of investigations or prosecutions carried out for the aforementioned crimes in their rights.
An appropriate balance has been established between the purpose driven by the provision of the specified difference in the conditions related to the acquisition of a special stamped passport and the decommissioned vehicle. In this context, according to the purpose of predicting the difference in question brought by the rule, lawyers covered by the rule were not burdened with excessive burdens. In this respect, there is no direction in the rule that contradicts the principle of equality.
The Constitutional Court ruled that the rule was not unconstitutional for the reasons described and refused the request for cancellation.
B. Rule Limiting Freedom To Go Abroad
Rules Subject To Litigation
The subject of the case, which is determined to pose a threat to national security in general rules, the structure, formation or membership in groups or terrorist organizations or those in contact with them due to cancelled the passports of iltisak or have a passport and rights specified in these rules have been established for those who did not meet the requirements of the administrative process, provided that the results of research to be done by law enforcement units, according to the Ministry of interior it is arranged that can be given a passport.
Reason For Cancellation Request
In summary, the petition stated that the rules give the administration authority in an area where the Constitution clearly stipulates the judge’s decision, eliminate the opportunities for people to work abroad, create an immeasurable intervention in their private lives, and it was argued that the rules are contrary to the Constitution.
Assessment Of The Court
23 of the Constitution. in the article, it is stated that the freedom of a citizen to go abroad may be limited only depending on the cause of criminal investigation or prosecution, and only by a judge’s decision.
For those who are allowed to obtain passports, the rules impose a limit on the freedom to go abroad, as certain conditions are stipulated by the rules subject to litigation. The recognition of this opportunity to some people by the rules leads to the inability to obtain passports from the point of view of those who are not allowed, so the rules subject to litigation from the point of view of these people provide a limitation to the said freedom.
A regulation on the freedom to travel abroad, which is a dimension of freedom of travel and is specifically guaranteed, is the 13th amendment to the Constitution. it must not contradict the reasons for limitation specified in the article and the guarantee provided for here.
It is clear that the rules subject to the case limit the issuance of passports to people, regardless of the cause of criminal investigation and prosecution and the decision of the judge.
23 of the Constitution. given that the freedom to go abroad in accordance with the article can only be limited due to criminal investigation or prosecution, and is linked to the guarantee of the judge’s decision, it seems that some of the reasons for the limitation provided for by the rules subject to the case do not comply with the reasons for the limitation specified in the article mentioned in the Constitution and are contrary to the guarantee of the judge’s decision linked to these reasons. In this respect, the rules limit the freedom to go abroad in violation of the Constitution.
The Constitutional Court decided that the rules were unconstitutional for the reasons described and their cancellation came into force one year after the decision was published in the Official Journal.
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