Violation of the Right to Immunity of Residence Due to a Search at Work Without a Judge’s Decrees
Events
The applicant is a joint stock company operating in the automotive Sunday. The Competition Board (Dec) decided to conduct a preliminary investigation in order to determine whether some economic operators, including the applicant, have violated the Competition Law No. 4054.
Competition experts authorized to conduct a preliminary examination went to the applicant’s address and made an on-site examination. As a result of the investigation, documents consisting of electronic mails taken from the company personnel’s computer were seized. In the report prepared as a result of the preliminary investigation, it was recommended to open an investigation, and in accordance with this recommendation, the Board decided to open an investigation into the Deceptions, including the applicant. In the report prepared by the rapporteurs of the Competition Authority as a result of the investigation, the undertakings, including the applicant, were Dec. 4 of Law No. 4054. it was concluded that they had committed actions contrary to the article and it was proposed to impose an administrative fine on the concerned persons. The undertakings in question. The Board decided to impose an administrative fine on the applicant.
Applicant filed a lawsuit at the Thirteenth Chamber of the Council of State (Chamber) with a request for the cancellation of the administrative fine and the regulation on which the penalty was based; the Chamber decided to dismiss the case. The applicant appealed against this decision to the Administrative Appeals Board of the Council of State (IDDC). IDDK upheld the decision of the department stating that it was in accordance with the procedure and the law.
The Allegations
Applicant claimed that the right to immunity of residence had been violated due to the illegality of the examination conducted at the workplace.
The Court’s Assessment
The concept of housing is generally defined as a financially determined place where private and family life develops. On the other hand, the concept of housing also covers workplaces; in this context, the workplace where a person performs his profession, the registered center of a company operated by a natural person, the registered headquarters, branches and other workplaces of legal entities can also be evaluated in this context. However, the common areas of workplaces that do not contain special elements and are open to everyone may not be evaluated within the scope of the housing concept.
A search is a protection measure for the purpose of preventing a crime by restricting certain basic rights of persons in order to obtain evidence and/or apprehend the accused or suspect before or after the crime has been committed. Decriminalization is a protection measure for the prevention of crime. It restricts fundamental rights such as search, the right to privacy, housing immunity, body immunity. Dec.
Competition experts in the concrete case, Law No. 4054 15. in accordance with the article, he conducted an on-site examination at the applicant’s workplace. The on-site inspection regulated in the said article means that the Board officials visit the workplaces of the undertakings or associations. To make initiatives and to carry out on-site inspections. Within this scope, the Board officials may examine the books of undertakings, all kinds of data and documents kept in physical and electronic media, as well as information systems, take copies and physical samples, request written or oral explanations on certain issues, and take necessary actions. -On-site inspections of all kinds of assets of the undertakings. 15 of the Law No. 4054.
Taking into account the powers listed in the article, it is understood that on-site supervision is an activity carried out at the headquarters, branches and facilities where the undertakings carry out their management activities. There is no doubt that the areas that are not freely accessible to everyone, such as the departments where the administrative affairs of the enterprises are carried out and the workrooms, will be considered housing. For this reason, taking into account that the documents were obtained from the company officials’ computers, it was assessed that the examination conducted at the applicant’s workplace constituted an interference with his right to housing immunity.
21 Of the Constitution. In the second sentence of the first paragraph of the article, it is stated that no one’s residence may be entered, searched and confiscated without a duly issued judge’s decision. In the same paragraph, it is stated that in case of delay, a written order of the authority authorized by law may be considered sufficient instead of a direct judge’s decision.
15 of the Law No. 4054. when the article is examined, it is seen that the ability of competition experts to conduct on-site examinations is not subject to the judge’s decision as a rule. In addition, 15 of the Law No. 4054. Although it is stated in the article that on-site inspection can be carried out by the decision of the Board, it is observed that on-site inspection by the decision of the Board is not limited to situations that are inconvenient. delay. 21 Of the Constitution. In the first paragraph of the article, it is stated that in cases of delay, a written order of the authority authorized by law may be considered sufficient instead of a direct judge’s decision.
21 Of the Constitution of the Regulation, which does not limit the possibility of on-site examination by the decision of the Board to cases where it is inconvenient to delay. It was decided that it was not in accordance with the article. On the other hand, even if it is accepted for a moment that the decision of the Board to make an on-site examination is limited to cases of unnecessary delay, the decision of the Board should be made within twenty-four hours, since there is no obligation to submit it to the approval of the competent judge, Article 21 of the Constitution. It is also contrary to the additional security in the article. Oct.
In the case, since there was no attempt by the applicant to prevent the on-site examination, an on-site examination was carried out at the applicant’s workplace without the need for a judge’s decision. 15 of the Law No. 4054. This practice, which seems to be in accordance with Article 21 of the Constitution. it is clear that the first paragraph of the article violates the guarantee in the second sentence. The violation of the authority to conduct on-site inspections contained in the relevant provisions of Law No. 4054 is referred to in Article 21 of the Constitution. It is understood that this is due to the fact that it is not regulated in accordance with the guarantees in the first paragraph of the article.
Since the violation of the right to housing immunity is independent of the outcome of the trial, there is no legal benefit in renewing the trial. However, the legislative body has the discretion to amend the provision of the law causing the violation in order to prevent new similar violations. In this context, since it will be appropriate for the purpose and function of the individual application to make arrangements taking into account the constitutional principles mentioned above, a sample of the decision should be sent to the information and discretion of the legislative body. Prevention of similar violations.
The Constitutional Court ruled that the right to housing immunity was violated for the reasons explained.
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