A. Rule Regarding the Issuance of Special Passports to Lawyers
Subject Rule
The rule in question 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
The petition summarized that the rule in question restricted freedom of travel by imposing certain conditions on lawyers to obtain special stamped passports and that the rule was contrary to the Constitution.
The Court’s Assessment
It is clear that the rule stipulating that special stamped passports shall not be issued to persons against whom investigations or prosecutions are being conducted for certain crimes does not result in the person being subject to criminal penalties or sanctions.
The fact that the legislator has laid down certain conditions for persons who may benefit from special stamped passports is merely a restriction on obtaining such passports. Therefore, the rule in question, which can be summarized as the requirement to fulfill certain conditions in order to benefit from the opportunities provided by being able to travel abroad as a holder of a special stamped passport, does not contain any provisions restricting the freedom to travel abroad guaranteed by Article 23 of the Constitution.
It can be said that there is a difference between lawyers under investigation or prosecution for certain crimes and those who are not, as they are in a similar situation and can be compared.
The inability of lawyers covered by this rule to obtain special stamped passports is not permanent but is limited to the duration of the investigation or prosecution conducted for the aforementioned crimes.
A proper balance has been struck between the objective sought by providing for the aforementioned difference in the conditions for obtaining a special stamped passport and the possibilities provided for by the rule. In this context, in line with the objective of providing for the aforementioned difference introduced by the rule, no excessive burden has been placed on lawyers covered by the rule. In this respect, there is no aspect of the rule that violates the principle of equality.
For the reasons explained above, the Constitutional Court ruled that the rule does not violate the Constitution and rejected the request for annulment.
B. Rule Restricting Freedom of Travel Abroad
Subject Rules
In accordance with the legislation on the subject, if the persons whose passports have been canceled or who have been subject to administrative proceedings regarding the issuance of passports due to their membership, affiliation, or connection with structures, formations, or groups determined to pose a threat to national security or terrorist organizations meet the conditions specified in the legislation, the law enforcement authorities shall take action. According to the results of the investigation, the Ministry of Interior may issue a passport.
Reason for Cancellation Request
The petition summarized that the rules were contrary to the Constitution, that the rules granted authority to the administration in an area clearly authorized by the Constitution to be decided by a court ruling, that they eliminated the possibility of individuals working abroad, and that they created 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 may only be restricted by a court decision in the event of a criminal investigation or prosecution.
The rules in question impose a restriction on the freedom to leave the country, as they stipulate certain conditions for persons who are permitted to obtain a passport. Granting this opportunity to some persons under the rules results in persons who are not granted this opportunity being unable to obtain a passport; therefore, the rules in question impose a restriction on the freedom of these persons.
The regulation concerning the freedom to travel abroad, which is one of the dimensions of freedom of movement and is specifically guaranteed, cannot be contrary to the reasons for restriction set out in Article 13 of the Constitution and the guarantee provided therein.
It is clear that the rules at issue in the case limit the issuance of passports to individuals, regardless of the reason for the criminal investigation or prosecution and regardless of the court 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 court decision in accordance with Article 23 of the Constitution, it is seen that some of the reasons for restriction provided for in the rules in the case do not comply with the reasons for restriction set out in the aforementioned article of the Constitution and are contrary to the guarantee of a court decision based on these reasons. In this respect, the rules restrict the freedom to leave the country in violation of the Constitution.
For the reasons explained above, the Constitutional Court ruled that the regulation in question was unconstitutional and should be annulled, and that the decision would enter into force one year after its publication in the Official Gazette.