A. Rules Regarding the Issuance of Special Passports to Lawyers
Subject Rule
This rule stipulates that lawyers under investigation or prosecution for certain crimes shall not be issued special passports, limited to the duration of the investigation or prosecution.
Reason for Request for Cancellation
In summary, the petition argued that the rule in question restricted freedom of travel by imposing certain conditions, such as requiring lawyers to hold special stamped passports, and that this rule was unconstitutional.
The Court’s Assessment
As stated in the rule, it is clear that the refusal to issue a special stamped passport on the grounds that the person concerned is under investigation or on trial for certain crimes does not lead to that person being deemed guilty and subject to criminal sanctions.
The fact that the legislative body imposes certain conditions when regulating who can benefit from special stamped passports is merely a restriction on obtaining such passports. Accordingly, the rule in question, which can be summarized as imposing certain conditions in order to benefit from the opportunities afforded by being able to travel abroad as a holder of a special stamped passport, does not contain any aspect that restricts the freedom to travel abroad guaranteed by Article 23 of the Constitution.
Considering that lawyers under investigation or prosecution for certain crimes and lawyers who are not are in a similar situation and can be compared, it can be said that there is a difference between them as required by the rule.
The inability of lawyers covered by the rule to obtain special stamped passports is not a permanent situation and is limited to the duration of the investigation or prosecution conducted in relation to the crimes in question.
An appropriate balance has been struck between the objective pursued by the aforementioned difference in the conditions for obtaining a special stamped passport and the means provided for in the regulation. In this context, the difference introduced by the regulation has not imposed an excessive burden on the lawyers covered by the regulation, in line with the objective pursued. From this perspective, there is no situation contrary to the principle of equality in the regulation.
For the reasons explained, the Constitutional Court ruled that the rule was not contrary to the Constitution and rejected the request for annulment.
B. Rule Restricting Freedom of Travel Abroad
Rules Related to the Subject
Those whose passports have been revoked or against whom administrative proceedings have been initiated for the issuance of passports due to their membership or connections with terrorist organizations, formations, or groups determined to pose a threat to national security, as specified in the relevant regulations, may be issued passports by law enforcement authorities provided they meet the conditions specified in the regulations. According to the results of the investigation, it has also been stipulated that passports may be issued by the Ministry of the Interior.
Reasons for the Request for Cancellation
In summary, the petition argued that the rules were contrary to the Constitution, that the Constitution clearly gave administrative authority in an area where a judge’s decision was required, that it eliminated individuals’ opportunities to work abroad, and that it constituted a disproportionate interference in their private lives.
The Court’s Assessment
Article 23 of the Constitution states that a citizen’s freedom to leave the country can only be restricted by a judge’s decision and for reasons of criminal investigation or prosecution.
The rules in question impose a restriction on the freedom to leave the country because they stipulate certain conditions for those who are granted permission to obtain a passport. The fact that some individuals are granted this opportunity under the rules prevents others from obtaining a passport; therefore, the rules in question also impose a restriction on the aforementioned freedom for these individuals.
A regulation concerning the freedom to travel abroad, which is one of the dimensions of freedom of travel and is specifically guaranteed, should not be contrary to the reasons for restriction specified in Article 13 of the Constitution and the guarantee provided therein.
It is clear that the rules in the case in question restrict the issuance of passports to individuals regardless of criminal investigation and prosecution and the judge’s decision.
Considering that the freedom to leave the country can only be restricted due to criminal investigation or prosecution and is subject to the guarantee of a judge’s decision in accordance with Article 23 of the Constitution, it is seen that some of the reasons for restriction envisaged in the rules in this case do not comply with the reasons for restriction specified in the relevant article of the Constitution and are contrary to the guarantee of the judge’s decision based on these reasons. In this context, the rules restrict the freedom to leave the country in violation of the Constitution.
For the reasons explained, the Constitutional Court ruled that the rules were unconstitutional and annulled them, and ruled that the decision would enter into force one year after its publication in the Official Gazette.